Patna High Court
Chandar Sah And Ors. vs Mst. Godhani And Ors. on 29 August, 1980
Equivalent citations: AIR1981PAT43, 1981(29)BLJR146, AIR 1981 PATNA 43, (1980) PAT LJR 423, (1981) BLJ 25, 1981 BLJR 146
ORDER S.K. Jha, J.
1. This is an appeal by some of the defendants who were respondents in the lower appellate court. There were four plaintiffs who were the appellants in the court of appeal below and respondent first party here.
2. The plaintiffs belonged to the branch of one Dhari Sah alias Ramdbari Sah, whereas the defendants-appellants belonged to the branch of one Yugal Sah. The plaintiffs-respondents 1st Party had brought a suit for partition claiming 1/3rd share in the property in the suit The genealogy is admitted. One Bhola Sah had three sons, namely. Yugul Sah, Gugul Sah and Dhari Sah alias Ramdhari Sah.
3. According to the case of the plaintiffs Bhola Sah died in the state of joint-ness leaving behind his three sons aforementioned in the year 1936. Bhola Sah aforementioned carried on his family business and other trade out of the income of which he acquired certain properties including the land under partition which were acquired in the name of different members of the joint family. All the branches of three sons of Bhola Sah were earlier joint in mess and business till some 18 years before the institution of the suit. When there was a partition of immoveable and grains the land of the joint family were also for the sake of convenience of cultivation possessed by the parties separately without there being a partition by metes and bounds. The plaintiffs, therefore, demanded partition of their 1/3rd share in the property which having been refused this suit was instituted.
4. The defence of the appellants was that Bhola Sah was a poor man having no family property apart from a residential house in which he was living. He actually died in the year 1926. The disputed property, namely, the property acquired under a registered sale deed dated 17-2-1975 in the name of Yugul Sah, a certified copy of which is Exhibit-1 was said to have been acquired exclusively by Yugul Sah personally from out of his own business income. The joint family have got nothing to do with the properties covered by Ext. 1.
5. The trial court dismissed the suit on the ground that on the admitted ease of the parties although the acquisition was made by Yugul Sah during the lifetime of his lather Bhola Sah the joint family had no income or funds at all from out of which this property could have been acquired. The trial court has accepted the case that Bhola Sah died in the year 1926. As to whether he died in the year 1926 or in the year 1936 does not make any difference for the purpose of the question involved in this appeal. Admittedly, Bhola Sah was living on the dale when the properties were acquired under Ext. 1 on 17-2-1925. Admittedly again the sale deed was executed by one Bala Kuer and another (strangers to the family) in favour of Yugul Sah whose heirs are the appellants here. The trial court held "admittedly, Bhola Sah, ancestor of the parties did not possess even a dhur of land till his death except a house and the land over which it stood". This finding has not been disturbed by the lower appellate court. Yet while the suit had been dismissed by the learned Subordinate Judge who had tried the suit on the ground that it was not joint family property but was the self-acquisition of Yugul Sah, the learned Additional District Judge in appeal has decreed the suit for partition with regard to the properties covered under the sale deed (Ext. 1) on the only ground that the properties covered by Ext. 1 were sought to be dealt with in the year 1956 by other branches of the erstwhile joint family.
6. In my considered view, learned Additional District Judge has misdirected himself on a substantial question of law which vitiates his judgment. As I have already observed above, the undisturbed finding of the trial court is that Bhola Sah was possessed of not even a dhur of land till his death except a house in which he was residing. Now I must state here some well settled principles of law which cover cases of the instant nature. It is true that if a joint family possessed property which was admittedly Joint, the presumption would be that the property continues to be joint, and the burden would lie upon the member who claims it as bis separate property to prove that there was a partition and that he got it on such partition. It is also true that this presumption is peculiarly strong in the case of brothers. It is further well settled that dealings and statements of parties determine the status of the family as to whether it was joint or jointness had disrupted. But, it is equally well settled that 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 property or item of the property is joint family property the burden of proving that it is so rests on the party asserting the same, (reference in this connection may be made to the case of Shadi Lal v. Lal Bahadur AIR 1933 PC 85 and Smt. Rukhmabai v. Lakshminarayan. AIR 1960 SC 335). To vender the property joint, the plaintiffs must prove that the family was possessed of some property which formed sufficient nucleus with the income of which the property could have been acquired (reference in this connection may be made apart from the numerous decisions of the various High Courts to the decisions in the cases of Appalaswami v. Suryanarayan-murti, AIR 1947 PC 189 and AIR 1960 SC 335 (supra)).
7. The court of appeal below not having found that there was any nucleus out of which the property under Ext. 1 could have been acquired by the joint family in the name of any individual member of the family, no presumption in law can arise that the property acquired by Yugul Sah under the sale deed of 1925 would still belong to the joint family and could in no case be the self acquisition of Yugul Sah. The initial burden of proving that the joint family was possessed of sufficient income or property which could form the nucleus for the acquisition by the joint family in the name of Yugul Sah? not having been discharged by any evidence aliunde, there could be no presumption that the plaintiffs had any interest in the property acquired by Yugul Sah although during the lifetime of the father of Bhola Sah, especially when Bhola Sah himself was possessed of no means for such acquisition for and on behalf of the joint family.
8. On the facts and in the circumstances discussed above, I am constrained to allow this appeal, set aside the Judgment and decree of the lower appellate court and restore that of the trial court. The plaintiffs-respondents 1st party's suit shall stand dismissed with costs throughout.