Patna High Court
Laulesia Devi vs Ram Saran Gope & Ors on 11 April, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT
PATNA
First Appeal No.651 of 1977
Against the Judgment and Decree dated 02.05.1977 passed by
Second Addl. Subordinate Judge, Biharsharif in Title Suit
No.191 of 1970 / 61 of 1974.
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Laulesia Devi
..........Intervener-defendant No.6-appellant
Versus
Ram Saran Gope & Ors
......................Plaintiffs-Respondents
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Appearance :
For the Appellant/s : Mr. BHUPENDRA NR. SINHA, Advocate
For the Respondent/s : Mr. RAMESH SINGH, Advocate.
Mr. Sunil Kumar Suman, Advocate.
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Dated : 11thday of April, 2013
PRESENT
CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ORAL J U D G M E N T
1. The intervener defendant No.6 has filed this First Appeal against the Judgment and Decree dated 02.05.1977 passed by the learned Second Addl. Subordinate Judge, Biharsharif in title suit No.191 of 1970 / 61 of 1974 whereby the Court below has decreed the plaintiff's suit for partition to the extent of `1/5th share.
2. The plaintiffs filed the aforesaid partition suit claiming 1/5th share alleging that the suit property described in Schedule 'A' and 'B' i.e., the suit land are the joint family property. Bandhu Gope had two sons, namely, Khublal and Jhaman. Out of the two sons, Jhaman died issueless, therefore, the only son Khublal became the owner of the entire joint family property measuring 3 acres 54 decimals. Out of the said 3 acre 54 decimals, Khublal 2 Patna High Court FA No.651 of 1977 dt.11-04-2013 2 / 12 sold 2.2 acres to the different person and, therefore the joint family had only 1.52 acres of land. Khublal died leaving behind 5 sons namely, Bulchand Gope , the defendant No.1 Ram Charitra the defendant No.2, Ram Avtar the defendant No.3, Ram Sharan the plaintiff and Janak, defendant No.4. On the death of Khublal, Bulchand, the defendant No.1 became the karta of the family and in the capacity of karta, he acquired the Schedule 'B' property either in his name or in the name of the family members. There is no partition between the parties and the properties is still joint.
3. None of the defendants appeared and contest the suit. The wife of Janak, i.e., defendant No.4, namely, Laulesia Devi, the appellant filed an intervention application for being added as party defendants in the suit and she was added as defendant No.6 in the partition suit.
4. The said intervener-defendant No.6-appellant filed contesting written statement. Her case in short is that the property measuring 2.5 decimal mentioned in Schedule 'B' is purchased by the appellant as such is her self acquired property. Likewise 97.5 decimal is her gifted property. So far the remaining 3.41 acres of land is concerned, her case is that there had been partition between the 5 brothers in the 13th Baishakh 1358 Fasli and Yadastha Batwara was prepared. The defendant No.1, Bulchand purchased the land measuring 3.41 out of his own fund received by him from in laws, therefore, it was his self acquired property. By registered deed of gift dated 27.6.1970, defendant No.1 out of love and affection gifted the said property in favour of the defendant No.6 and the defendant No.6 accepting the gift deed came in possession of the same and is paying rent regularly. There is no unity of title and possession between the parties. As such the plaintiff's suit be dismissed. On the basis of the aforesaid pleadings, the Court below framed the following issues :
(i) Is the suit as framed maintainable?
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3 / 12
(ii) Has the plaintiff valid cause of action for the suit?
(iii) Is there any unity of title and possession between the plaintiffs
and the defendants in respect of the suit properties?
(iv) Is the plaintiff entitled to a decree for partition? If so, to what
extent?
(v) To what relief or releifs, if any, is the plaintiffs entitled to?
5. The learned counsel, Mr. Bhupendra Narayan Sinha appearing on behalf of the appellant submitted that the learned Court below has wrongly recorded a finding that the property purchased by defendant No.1 by registered sale deed dated 28.5.1951 is purchased out of joint family fund. According to the learned counsel, the ancestral property has been described in Schedule 'A' which is only 1.52 acres. Out of the said 1.52 acres house is situated over 12 decimal of lands. There were 5 brothers and their wives and children are there. In such circumstances, there cannot be any presumption that out of the income of that ancestral property, the family saved substantial amount after spending for the family which form the nucleolus and out of that nucleolus the property measuring 3.41 acres could have been acquired. The learned counsel further submitted that the trial Court presumed that the family have cattle business and milk business and there might be sufficient saving out of the said business although in the plaint, the plaintiff never pleaded about the cattle business and milk business and, therefore, the appellant was taken by surprise by the evidence produced by the plaintiff in the Court. According to the learned counsel, since there is no pleading the evidence regarding cattle business and milk business could not have been looked into and relied upon by the trial Court but the trial Court relied the same which greatly prejudiced the appellant. Although the plaintiff pleaded in the plaint that 7 decimal land was purchased by defendant No.1 in the name of defendant No.2 and 3 by registered sale deed dated 15 th July, 1964 but the said land has not been included in Schedule 'B' of the plaint. In other words 4 Patna High Court FA No.651 of 1977 dt.11-04-2013 4 / 12 according to the learned counsel this land in the name of defendant No.2 and 3 is not the subject matter of the present suit.
6. According to the learned counsel for the appellant, the other aspect of the matter is that there had already been partition between the 5 brothers prior to acquisition of the property in the name of defendant No.1 by registered sale deed dated 28.5.1951 and a Yadashta Batwara was prepared which has been marked as ext. 'A'. The plaintiff had signed on this ext. 'A' which has been proved by the hand writing expert who has been examined as D.W.8 but the learned trial Court doubted this document on the ground that the witnesses examined on behalf of the defendants are not consistent about the previous partition. Since the acquisition has been made by the defendant No.1, the onus was on the plaintiff to prove satisfactorily that the said property was purchased out of the joint family fund and here in the present case since there was separation between the 5 brothers, there is no question of any joint family fund arises. The learned counsel in support of his contention relied upon a decision of Apex Court reported in AIR 1969 SC 1076 Mudigowda Gowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by his legal representatives and another.
7. The learned counsel further submitted that except 3.41 acres which is in the name of the defendant No.1, the other property described in Schedule 'B' has been held to be the self acquired property of defendant No.6 appellant. The plaintiff-respondent has not filed any cross objection claiming a share in that property and, therefore, that part of the decree is not under challenge. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff's suit be dismissed.
8. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the plaintiff clearly pleaded in the plaint that the 5 Patna High Court FA No.651 of 1977 dt.11-04-2013 5 / 12 property measuring 3.41 acres was acquired out of the joint family fund and in the evidence the plaintiff examined many witnesses who supported that the family had the milk business and cattle business and out of that income the karta i.e., the defendant No.1 purchased the property in his own name. According to the learned counsel, in the villages generally it is seen that the people deal with the cattle and milk business and, therefore, the Court below has rightly recorded the finding that there was joint family fund and out of the said joint family fund, the property had been acquired and has rightly granted the share to the plaintiff. So far ext. 'A', i.e., the Yadashta Batwara is concerned, the learned counsel for the respondent submitted that the document was doubtful because it was produced by the defendant in the Court below after 4 witnesses were examined by the plaintiff. The defendant filed the said document in the Court only after examination of 4 witnesses by the plaintiff. In such circumstances, the learned trial Court has rightly disbelieved the said ext. 'A' on the ground that it is doubtful. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree cannot be interfered with in this First Appeal.
9. In view of the above contentions of the parties, the points arises for consideration in this First Appeal is as to whether the property standing in the name of defendant No.1 measuring 3.41 acres is the joint family property and the parties have unity of title and possession over the same or the said property was the self acquired property of defendant No.1 who has gifted the said property to the present appellant and whether the impugned Judgment and Decree are liable to be set aside.
10. The plaintiff respondents filed the simple suit for partition. In Schedule 'A' to the plaint, the ancestral property has been mentioned which measures 1.52 acres. In Schedule 'B', the acquired property has been 6 Patna High Court FA No.651 of 1977 dt.11-04-2013 6 / 12 mentioned measuring 3.56 acres including the property standing in the name of defendant No.1 measuring 3.41 acres.
11. It appears that subsequently an amendment application was filed by the plaintiff praying for adding of further property measuring 2.5 decimal standing in the name of the appellant and 97.5 decimal gifted to the appellant. However, by terms of order dated 13.3.1976, the prayer for addition of 97.5 acres was rejected. However, the prayer for addition of 2.5 decimal was allowed by the trial Court. In spite of the said order, it appears that the plaintiff did not carried amendment in the plaint as such in view of the provision as contained in order 6 Rule 18 of the Code of Civil Procedure, the same cannot be held to be subject matter of the suit. Moreover, the Court below recorded the finding in favor of the appellant.
12. According to the plaintiff, the property measuring 3.41 acres included in Schedule 'B' which is standing in the name of the defendant No.1 is the property acquired out of the joint family fund whereas according to the defendants, the said property is self acquired property of the defendnatNo.1 which was acquired out of the separate fund of the defendant No.1. This question is the main question and controversy between the parties. The parties have adduced evidences in support of their respective cases. Admittedly, the property measuring 3.41 acres and 8 decimal are standing in the name of the defendant No.1 which were acquired through ext. 'C' and 'C/1' dated 28.5.1951.
13. According to the principle of Hindu Law, there is no presumption that a family because it is joint possesses joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property, the burden of proving that it is so rests on the party asserting it. In the instant case since property is in the name of defendant No.1, the burden is on the plaintiff who is asserting that the 7 Patna High Court FA No.651 of 1977 dt.11-04-2013 7 / 12 property is the joint family property which has been acquired out of the joint family fund. As stated above, Khublal had got 5 sons including the plaintiff. It is admitted that they have family members. It is also admitted that the ancestral property measures only 1.52 acres and out of that house is on 12 decimal of land. In the plaint, only statement has been made by the plaintiff that the property has been purchased out of the joint family fund. There is no details as to what was the income and what was the expenses and what was the saving. There is nothing even to say what was the income from the ancestral property.
14. P.W.1 has stated that Khublal had 5 sons who were joint. After death of Khublal, Bulchand became the karta. At that time, the family had about 2 ¾ bigha land. Out of the income from that land and cattle business, they enlarged the area of the land. P.W.2 has also stated the same thing. P.W.3 has also stated the same thing. P.W.4 have all stated in the same line. The other witnesses of the plaintiffs are not on this point rather they are formal in nature.
15. The intervener defendants appellants has examined witnesses in support of her case that the property was purchased by the defendant No.1 out of his own fund. D.W.1 has stated that there was partition between the 5 sons of Khublal in his presence. This witness has also proved the ext. 'A' the Yadastha Batwara. This witness has also stated that Bulchand had purchased the property out of his own income. At paragraph 2 of his deposition he has stated that since 4 or 5 years, it is in possession of the appellant. D.W.2 has also stated that after death of Khublal, there had been partition between the 5 brothers. After partition defendant No.1 Bulchand had purchased the property out of his own fund and he came in possession of the same. D.W.4 has also stated about partition and purchased by defendant No.1. He stated that Bulchand got money from his in-law's house and he purchased the land out of 8 Patna High Court FA No.651 of 1977 dt.11-04-2013 8 / 12 the said fund. Bulchand had gifted the property to the present appellant. This witnesses has also stated that the ancestral property has no income as the lands were sandy. D.W.7 is the intervener defendant No.6 appellant. She has fully supported her case. In view of the above evidences of the parties, it appears that the plaintiff have adduced evidence to the effect that out of the income of the ancestral and cattle and buffalo business, the property have been purchased by defendant No.1 who was karta. On the contrary, the defendants-appellants had adduced to the effect that there was partition and after partition defendant No.1 out of his own fund including the money which he got from Sasural purchased the land in his own and came in possession thereof. Subsequently, he gifted the same to the present appellant.
16. It is settled law that where it is established or admitted that the family possess, some joint property which from its nature and relatives value may have formed the nucleus from which the property in question may have acquired, the presumption arises that it was joint property and the burden shifts to the party alleging that acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption arise, if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. An important element for consideration is the income which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisition could be made even though it might be of considerable value. The existence of some nucleus is the sole criteria to express the subsequent acquisition with family character. What is to be shown is that the family has as a result of the nucleus sufficient surplus income from which the subsequent acquisition could be made. This may be shown from the nature and relative value of the nucleus itself.
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17. As stated above, in this case, the plaintiff in the plaint pleaded that ancestral property measures only 1.52 acres. Admittedly out of that house is on 12 decimal. Therefore, the remaining land is 1.40 decimal. We have discussed the evidences adduced on this point by the plaintiff. According to the plaintiff's witnesses out of income of the ancestral land and buffalo and cow business, the property was purchased by defendant No.1. However, there is no pleading in the plaint regarding either buffalo business or cow business. Likewise there is no explanation as to what was the income from the joint family agricultural land.
18. In the case of Bachhaj Nahar Vs. Nilima Mandal 2008 (17) SCC 491, the Hon'ble Supreme Court has held that no amount of evidence on a plea that is not put forward in the pleadings can be looked into to grant any relief. Only in exceptional cases, can this general rule be deviated from if the Court is fully satisfied that the pleadings and issues generally gathers the case subsequently put forward and that the parties being conscious of the issue had led evidence on such issue. In the present case as stated the evidence regarding buffalo business and cow business has been stated by the witness for the first time in the Court. In view of the settled law of the Apex Court, therefore, this part of the evidence of the witnesses cannot be looked into or relied upon.
19. So far showing nucleus is concerned as stated above, there is nothing in the pleading or in the evidence as to what was the income from the said 1.40 acres of land, what was the expenditure of family because, according to the plaintiff, the 5 brothers were joint with their family members. From perusal of the trial Court Judgment, it appears that the Court below presumed this fact that the family must have the other business as stated by the witnesses otherwise how the family could have been maintained out of the said income of the ancestral land measuring 1.52 acres only. In my opinion, 10 Patna High Court FA No.651 of 1977 dt.11-04-2013 10 / 12 this presumption could not have been drawn by the trial Court in favor of the existence of the nucleus.
20. In the case of AIR 1969 SC 1076 Mudigowda Gowdappa Sankh and others Vs. Ramchandra Revgowda Sankh (dead) by his legal representatives and another, the Apex Court has held at paragraph 6 that there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self- acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
21. We have also discussed the evidences adduced by the defendant appellant who stated that the defendant No.1 purchased the property out of the fund which he got from in law's house and has separate income.
22. In view of the above discussion, it is clear that the trial Court has not considered the settled proposition of law laid down by the Apex Court and also the trial Court relied upon the evidences for which there was no pleading and the witnesses for the first time deposed in the Court taking the appellant to surprise. I, therefore, find that the ancestral land measuring 1.40 decimal had no sufficient surplus income to form joint nucleus. The plaintiff- respondent failed to show either sufficient income or surplus income and, 11 Patna High Court FA No.651 of 1977 dt.11-04-2013 11 / 12 therefore, the so called nucleus that is 1.40 acres land is not such that with the income of the same the property purchased on 28.5.1951 in the name of the defendant No.1 could have been acquired. Therefore, the finding of the learned trial Court of this question is, therefore, reversed and it is held that the property is the self acquired property of the defendant.
23. So far partition is concerned, we have seen the evidence of the parties. The appellant produced oral evidences and also the documentary evidence Ext. 'A'. The trial Court disbelieved the Ext. 'A' on the ground that it is doubtful as it was produced after 4 witnesses were examined. In my opinion on this ground, it could not have been doubted. Here, the handwriting expert has been examined as D.W.8 who has proved that on Ext. 'A', the plaintiff has signed. Admittedly, Ext. 'A' is Yadast batwara, therefore, it is not required to be registered. The report of expert is Ext. 'G'. The pleader commissioner D.W.6 has proved his report Ext. 'E' which indicate that there were ridges dividing the suit plots. The trial Court disbelieved the documentary evidence by examining the legality or reliability of the same on the basis of oral evidence. In my opinion, the approach of the Court below is wrong. I, therefore, find that the appellant has been able to prove that there was previous partition.
24. So far this question regarding previous partition or no partition between the 5 brothers is concerned, it is now not important because even if it is held that the brothers were joint, then also it has been found that the property had been acquired by the defendant No.1, therefore, the plaintiff is not entitled to a share in the property. If it is held that the brothers were separate then also the findings is in favour of the appellant. However, I find that there had been previous partition and defendant No.1 acquired the property after partition.
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25. In the case of Salim Advocate Bar Association Vs. Union of India 2005 (6) SCC 344, the Apex Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately it has became a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 sub section 2 C.P.C. Such a practice also encourages filing of frivolous suits. It also leads to the taking up of frivolous defence. Further, whenever cots are awarded, ordinarily the same are not realistic. When Section 35 (2) C.P.C. provides for costs to follow the event, it is implicit that the costs have to be those which are reasonable incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof.
26. In view of the above facts and circumstances of the case and the finding, this First Appeal is allowed with cost of Rs.10,000/- to be paid by the plaintiff respondent to the appellant within 2 months. The impugned Judgment and Decree are set aside. The plaintiff's suit is dismissed. If the cost is not paid within 2 months, the appellant is at liberty to realise the said cots through process of the Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 11thApril, 2013 Sanjeev/N.A.F.R.