Orissa High Court
Khusal Majhi (Dead) After Him Smt. Mali ... vs Guruva Majhi And Ors. on 2 November, 2004
Equivalent citations: 99(2005)CLT318
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. The defendants-appellants in a suit for partition are the appellants in this second appeal.
2. Plaintiff's case is that suit 'B' schedule property is their joint family property in which they have got 1/4 share and that property was never partitioned among them but they are possessing separate portion of the property according to their convenience. Plaintiff's father Hariram Majhi was working as a 'Makardam' in the Railway Company and out of his own income he acquired some properties which are described in Schedule-C of the plaint. Hariram died 13 to 14 years back leaving his minor sons plaintiffs 1 to 3 and the widow Plaintiff No. 4-Khusal Majhi, Defendant No. 1 was looking after the minor sons and widow of his late brother Hariram and taking advantage of such management, he got the note of possession in his favour in respect of certain properties mentioned in Schedule-C in the current settlement. Those properties in respect of which note of possession has been made in favour of Defendant No. 1 have been described in Schedule-D of the plaint. The properties in Schedule-E of the plaint were the joint property of Defendant No. 1 and late hariram over which other defendants have no manner of right, title and interest. Plaintiffs claim 1/2 share from 'E' schedule property. The plaintiffs thus claim 14 share from 'B' schedule property, 1/2 share from 'E' schedule property and they claim to be exclusive owner of the properties described in Schedules-C and D of the plaint. They have prayed for declaration of their title in respect of 'D' schedule property and confirmation of possession and in the alternative for recovery of possession in case they are found to have been dispossessed and consequently correction of records-of-right in respect of 'D' schedule property wherein note of possession has been made in the name of Defendant No. 1.
Defendants-appellants jointly filed a written statement claiming previous partition of the suit land among the parties and pleaded that the suit for partition is not maintainable. The defendants did not admit the allegation that Defendant No. 1 was looking after the plaintiffs after the death of his brother Hariram Majhi. It is pleaded in their written statement that Hariram was never working as a Makardam in the railway and he had no income at all during his lifetime. According to them Hariram was a permanent epileptic patient and his right leg was burnt for which he was always sitting idle without any work and, therefore, acquisition of 'C' schedule property by him from his income was false. Defendant No. 1 -Khusal Majhi and Nayan Majhi, father of Defendant Nos. 2 and 3 and grand-father of Defendant No. 4 were working in the railways. Out of their income Defendant No. 1 and his father Bhunda purchased the 'C' schedule property in the name of late Hariram who is the eldest brother of Defendant No. 1 with the idea that the property in the name of the eldest son would be enjoyed by all the sons. According to the pleadings, Defendant No. 1 is the sole owner of 'C' schedule property and the plaintiffs have no manner of right, title and interest over the same. The allegations that Defendant No. 1 managed to get his name noted as the person in possession of 'D' schedule property taking advantage of the ignorance and helplessness of the plaintiffs has been denied. The defendants claim that there has been partition of the joint family property between late Nayan and Bhunda about 40 years back and after the death of Nayan his sons Defendant Nos. 2 and 3 and the father of Defendant No. 4 are in possession of their share of land separately till now by amicable partition. Similarly after the death of Bhunda, his two sons Hariram and Khusal partitioned the lands of Bhunda by metes and bounds. A plea has been urged for non-maintainability of the suit, on the ground of mis-joinder and non-joinder of parties and on the ground of limitation.
4. The Learned Sub-ordinate Judge framed the following issues :
1. Is there any cause of action to file the suit ?
2. Is the suit maintainable ?
3. Was there any previous partition of 'B' schedule land by metes and bounds between the parties ?
4. Is the suit bad for non-joinder and mis-joinder of parties ?
5. Is the suit barred by limitation ?
6. Are the 'C' schedule properties self-acquired properties of late Hariram, father of plaintiffs 1 to 3 ?
7. Is the Defendant No. 1 entitled to any share from 'C' schedule land ?
8. To what relief, the plaintiffs are entitled ?
5. On issue No. 3 the Learned Trial Court held that 'B' schedule lands have not been partitioned by metes and bounds between the parties. Issue Nos. 6 and 7 were considered and taken up together for convenience. The Trial Court on consideration of materials on record came to a conclusion that 'C' schedule property is the self-acquired property of late Hariram, the father of plaintiffs 1, 2 and 3 and, as such, Defendant No. 1 cannot claim any share out of the said property. Issue Nos. 4 and 5 were answered in the negative. On issue Nos. 1, 2 and 8 the Learned Trial Court held that the plaintiff's prayer for partition of the properties and their claim of share in respect of each item is justified and they are entitled to the same. Learned Trial Court passed a preliminary decree on contest against the defendants and the plaintiffs were held to be entitled to 1/4 share from 'B' schedule property, 1/2 share from 'E' schedule property and they were declared to be the exclusive owner in respect of 'C' and 'D' schedules of property. It was also declared that the entry in the current settlement record-of-rights regarding note of possession in favour of Defendant No. 1 in respect of 'B' schedule property was wrong and it was directed to be corrected in due course. Recovery of possession in respect of 'B' schedule property from Defendant No. 1 was decreed.
6. Being aggrieved, the defendants filed Title Appeal No. 9 of 1983 before the Learned District Judge, Mayurbhanj at Baripada. It appears from the judgment of the Learned Lower Appellate Court that the Learned Counsel did not press any other issue except issue Nos. 6 and 7. The Appellate Court recorded a finding that though the defendants took the plea of previous partition in respect of Schedule B property, there was no evidence on record to hold that such properties were partitioned by metes and bounds. Learned Lower Appellate Court further found that there being no evidence that either Nayan or Bhunda purchased the 'B' schedule lands measuring about 11 manas and the property claimed to be the joint family property purchased by heirs of Silu being to the extent of 3 manas only and there being no evidence that the said property was purchased from the joint family nucleus which was sufficient to acquire such 11 manas of property described in the plaint, the plea that the purchase was made on behalf of the joint family is not acceptable. The Learned Court observed that the three sale deeds in respect of lands in Schedule-C were in favour of Hariram and the defendants failed to prove that the properties were acquired from the joint family nucleus. Learned Lower Appellate Court confirmed the findings of the Trial Court and dismissed the appeal. Hence the present second appeal.
7. The substantial question of law requiring examination in this second appeal is whether in view of the finding of the Courts below that neither the plaintiffs nor Defendant No. 1 could establish that their predecessors-in-interest had separate income for acquisition of the disputed properties and in view of the finding that some joint family nucleus was available at the time of acquisition of these properties, whether the Courts below erred in holding that the suit properties were not the joint family properties, but were separate properties of the plaintiffs.
8. Law is well settled that proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property was joint to establish the 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 the 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 the joint family property, Where the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. Where the finding of the Courts that the income from the ancestral lands was not sufficient even for the maintenance of the members and the property in dispute are substantial, the burden is on the plaintiff who alleges the property to have been acquired out of joint family funds, to establish it. The Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379 relying on Appalaswami v. Suryanarayanmurti, AIR 1947 PC 189 held that in view of the presumption where the party fails to discharge the burden of establishing sufficient nucleus that the acquisitions were made with aid of joint family funds, the burden shifts on the party who asserts self-acquisition.
In Mudigowda Gowdappa Sankh and Ors. v. Ramachandra Revgowda Sankh, AIR 1969 SC 1076, the Apex Court held 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.
9. In the case at hand, the defendants in their written statement pleaded that Silu, the common ancestor had only 3 manas of land but they did not adduce any evidence that either Nayan or Bhunda purchased the 'C' schedule property and, therefore, those are claimed to be the joint family properties having been purchased by heirs of Silu. The Courts below have found, on appreciation of evidence, that the 3 manas of land owned by the joint family, is not a sufficient nucleus to acquire so much of property as described in Schedule C. Since the burden of proof was not discharged by the defendants in showing that the joint family property was sufficient enough to aid purchase of the land in question, the burden does not, as it is, shift to the plaintiffs to prove self-acquisition. The plaintiffs have pleaded and proved that since Hariram was serving in the railways, he purchased the land from his own income which the defendants denied. The pleadings of the defendants that Hariram was disabled on account of epileptic fits was also not proved by adducing cogent evidence. Nothing has also been pleaded and proved to show that the income from or usufructs of three manas of joint family property was sufficient enough to sustain the joint family need and there was any surplus to aid acquisition of other properties like Schedule C property. The sale deeds were admittedly in the name of Hariram and the lands were immediately mutated in the name of Hariram, In such view of the matter, in absence of any evidence of nucleus to aid acquisition of further property, there was no requirement of law nor have the Courts below erred in holding that the burden of proving, sufficient nucleus for acquiring the property having not been discharged by the defendants, the question of shifting the burden to the plaintiffs who asserted acquisition of land from own income of Hariram would not arise. In view of the concurrent findings of facts recorded by the Courts below with regard to the proof of sufficient nucleus from joint family property and the acquisition of property by Hariram and recording of such property in the name of Hariram are concurrent findings of facts and cannot be disturbed in a second appeal.
10. In view of the concurrent findings of fact recorded by the Learned Courts below that the defendants have not been able to prove sufficient nucleus for acquisition of 'C' schedule property and that Hariram has acquired such property from his own income and with regard to the share in suit schedule lands, there is no scope in the present second appeal to interfere with such findings.
11. In the result, I see no merit in this second appeal which is accordingly dismissed but there shall be no order as to costs.