Chattisgarh High Court
Jagdish Das vs Tuleshwar Das And Ors on 16 March, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 01-02-2022
Pronounced on 16-03-2022
First Appeal No.435 of 1999
• Jagdishdas, S/o. Shri Ram Lakhan Das, aged 50 years, R/o.Village Bauridm
Tahsil & Distt. Raipur, Presently residing at L-20, Marauda Sector Bhilai, Distt.
Durg (CG)
---- Appellant
Versus
1. Shri Tuleshwardas, S/o. Shri Ram Lakhan Das, aged about 40 years, R/o.
Village Baurid, Tahsil & Distt. Raipur (CG)
2. Smt. Sumitra Bai, W/o. Shri Jagdish Kumar, R/o. Radha Krishna Marg
(Fokatpara), Mahasamund, Distt. Raipur (CG)
3. Smit. Sushila Bai, W/o. Shri Baldavdas, R/o. Kumharpara, Mahasamund, Distt.
Raipur (CG)
4. Smt. Usha Bai, widow of Shri Ram Lakhan Das, R/o. Village Baurid, Tahsil &
Distt. Raipur (CG) (Deleted)
---- Respondents
For Appellant : Shri Atanu Ghosh, Advocate
For Respondents : Shri Bhaskar Pyasi, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1) The appellant/plaintiff has filed present appeal under Section 96 of the CPC challenging the judgment and decree passed by the learned 6th Additional Judge to the Court of District Judge, Raipur in Civil Suit No. 291-A/95 by which the learned trial Court has only partly allowed the suit, but, not granted partition of the suit property recorded in the name of Tuleshwardas and Urmilabai as these properties are found not belonging to Joint Hindu Family.
2) For the sake of convenience parties would be referred to as per their status shown in the suit filed before the trial Court.
3) The brief facts as reflected from the plaint averments are that the plaintiff has filed civil suit contending that defendant No. 1 is his brother, defendants No. 2 and 3 are his sisters and defendant No. 4 is his mother. He would submit that the lands situated at village Borid total measuring 6.228 Ha. as shown in Schedule A of the plaint are ancestral 2 property. The lands purchased by Tuleshwardas and Urmilabai are from the income generated from the nucleus of the ancestral property, as such they have common share in the property. The house mentioned in Schedule B is worth Rs. 1.50 lakhs which is in the name of his father. Another house mentioned in Schedule C is in the name of Tuleshwardas which is worth Rs. 24,000/- and this property is also belonging to joint hindu family property. The plaintiff and defendants have equal share in the property. Beside this there is a saving bank account in Gramin Bank, Aarang in which Rs. 10,000/- is available. In this amount he is entitled for 1/3rd share. Defendants No. 1 and 4 are in possession of the entire property where as defendants No. 2 and 3 are residing in their matrimonial house. Defendant No. 1 has sold paddy for the amount of Rs. 18,000/- in which he has also 1/3rd share. He sent notice on 06.03.1995 to the defendants for partition by registered post but defendant No. 1 did not give partition, this necessitated him to file the present suit.
4) Defendants No. 1 to 4 have filed written statement denying the allegation made in the plaint contending that property mentioned in the Schedule A is his self acquired property and as such neither the plaintiff nor defendants No. 2 to 4 have share in this property. It has been contended that the property mentioned in Schedule B is joint hindu family property for which the plaintiff is entitled for equal share. The house shown in Schedule C is his self acquired property which has been purchased in the year 1984, therefore, neither plaintiff nor defendants No. 2 to 4 have any right over this property. It has been contended that the amount of Rs. 10,000/- which is lying in the Gramin Bank, was earned by his father, therefore, only defendant No. 4, his mother is entitled for this amount. The plaintiff is also not entitled for 1/3rd of the amount Rs. 18,000/- which has been earned on selling the paddy, since the amount has been spent with the consent of plaintiff and all the defendants towards the medical treatment and last rituals of his father. The contention of the plaintiff that partition was not done, is not acceptable as meeting for partition was organised thrice in the presence of senior citizens of village and the partition was decided but it was denied by the plaintiff whereas joint family property is still ready for partition. Therefore, it is incorrect that even after notice, partition was not 3 given. Defendant No. 1 got married with Urmilabai in 1975. His father in- law is trader, on his advice he opened the grocery shop and started business of paddy purchase. For opening of the shop his father- in-law had given Rs. 14000/-. From the income of the grocery shop and paddy purchase business, he has purchased land and house in his name and land in his wife's name. As such, the properties mentioned in Schedule A is his self acquired property. It is further contended that his father expired on 16.10.1994. During the life time of his father, his father used to do agricultural work himself with the help of labour and used to keep the agricultural income with him. Therefore, it is emphatically denied that the properties purchased by him in his name and his wife's name were purchased from the income of joint hindu family property. As such, prayed for dismissal of the suit.
5) On the pleadings of the parties, learned trial Court framed as many as 6 issues. The issues which are required for determination of the points raised in this appeal are as under :-
(i) Whether the land situated at village Borid recorded in the name of defendant No. 1 measuring 1.079 Ha and his wife measuring 2.094 Ha. are parental properties, if yes, what is its effect? and
(ii) Whether property mentioned in Schedule C is parental property if yes, then what is its effect?
6) The plaintiff to substantiate his averments examined himself as PW/1, Jeetram Sahu as PW/2, Umrao Sahu as PW/3 and exhibited documents Ex.P/1, P/2 and P/3 - certificates of B1 Kistbandi Khatauni, Ex.P/4, P/5 and P/6 - certificates of Khasra Panchasala, Ex.P/7- copy of Sale deed dated 22.04.1978, Ex.P/8- copy of Sale deed dated 06.05.1980, Ex.P/9-
copy of Sale deed dated 09.06.1980, Ex.P/10 - Rashancard, Ex. P/11 certificate of Sarpanch, Borid, Ex.P/12 notice, Ex.P-13 - Postal receipt, Ex.P/14- postal acknowledgement, Ex.P/15 Postcard dated 07.08.1978. The plaintiff was cross-examined by the defendants wherein he has admitted that he was serving with Bhilai Steel Plant since 1965, he has purchased around 13 acres of land at village Borid and a big house at village Borid. He has also admitted that he has not produced any document with regard to deposit of Rs. 10,000/- in the Gramin Bank. It is true that after sending of notice a panchayat meeting was convened. He has no talking relation with defendant No. 1. He has also admitted that 4 he has given his evidence with regard to income from shop without any foundation. Jeetram Sahu, PW/2 in his cross-examination has admitted that plaintiff has been working in Bhilai in the lifetime of his father, from year 1977 to 1990 defendant had run the shop, thereafter, the shop was closed for 6 years, for the last two year it has been again opened. He has not seen the purchase sell account of the shop of defendant. Umrao Sahu, PW/3 has also admitted in cross-examination that defendant No. 1 has opend grocery shop in the village since last 20-25 years and for the last 20-25 years he is purchasing paddy and whenever defendant No. 1 used to go for purchase of paddy he was not accompanying him but he met him some time in the Mandi. He has not seen the accounts of provision store of defendant No. 1.
7) Defendant No. 1 was examined before the trial Court and exhibited documents Ex.D-1 sale deed dated 22.01.1978 purchase of land in the name of his wife, Ex.D-2 sale deed dated 06.05.1980 for purchase of land in the name of his wife, Ex.D-3 Sale deed dated 15.06.1981 for purchase of land in the name of his wife, Ex.D-4 Sale deed dated 20.04.1982 for purchase of land in the name of his wife, Ex.D-5 Sale deed dated 11.05.1984 with regard to purchase of land in the name of his wife, Ex.D-6 sale deed dated 01.06.1984 with regard to purchase of house in his name. Ex.D-7 sale deed dated 01.06.1984 with regard to purchase of land in his name. Ex.D-8 sale deed dated 11.03.1991 with regard to purchase of land in his name. Ex.D-9 application for Authentication (Pramanikaran) dated 22.04.1978, Ex.D-10 application for Authentication (Pramanikaran) dated 20.04.1982, Ex.D-11 application for Authentication (Pramanikaran), Ex.D-12-C Passbook Dena Bank and Ex.D-13-C Passbook Gramin Bank. He has also stated in his evidence that he has opened the grocery shop in the year 1976, income generated from the shop is deposited in account No. 1589 maintained in Dena Bank Branch Aarang. He has also stated that he has another bank account in Bilaspur-Raipur Gramin Bank. He has made expenditure towards rituals of his father. He had requested the plaintiff for contribution, but he had denied, therefore, he had taken loan from other person which was repaid by sell of paddy later. Before filing of the suit, meeting for partition has been convened in the village Panchayat thrice wherein it has been agreed that they will partition the land which is in the 5 name of their father, rest of the land and property was their self-acquired property, therefore, it will not be partitioned. He would further submit that his father-in-law had given him Rs. 14000/- for opening of the grocery shop and from the income generated from the shop he has purchased other properties in his name as well as his wife's name.
8) Defendant No. 1 was cross-examined by the plaintiff wherein he has admitted that the lands which are in the name of his wife have been purchased by him during the life time of his father. His father was keeping the income generated from the agricultural operation with him. The income generated from the land owned by his wife was kept by defendant No. 1. After the death of his father the agricultural income was being kept in joint account. He would further submit that there is no separate account for agricultural income. He admitted that the amount of Rs. 14000/- which he had received from his father in law, returned to him in installments. He has stated that I had maintained account in this regard, but teared off the note after complete repayment. There was not much income from the grocery shop, therefore, he has not registered the shop with Sales Tax Department and Gumasta Law, however, I was generating good income from the sale purchase business of agricultural produce and I had license also from the Foods Department. Some of the license have been produced and some of them have been lost. He examined Naresh Chandrakar, DW/3 who has stated that defendant No. 1 started the shop in the year 1976, there were only two three shops, therefore, shop was running in good condition. He has invested huge amount in his shop. It has been admitted that two-three meetings in Panchayat were organised in which it was agreed that they will distribute the ancestral property only which is in the name of his father not the other properties, which was refused by the plaintiff. Plaintiff was claiming that the lands which are in the name of the defendant No. 1 and wife are the ancestral property, but it was refused by defendant No. 1. He has admitted that the plaintiff was working in the Bhilai Steel Plaint for the last 30-35 years and he has purchased 12 acres of land from his own income in his name and his wife's name. DW/4 Sonu Ram Yadav has reiterated the same evidence which have been recorded by DW/3 Naresh Chandrakar.
9) The trial Court after appreciating the evidence and materials on record 6 has recorded a specific finding that there is no such evidence brought on record by the plaintiff that the lands which have been recorded in the name of defendant No. 1 and his wife have been purchased from the nucleus of the joint family income. It has also been recorded that plaintiff has not produced any evidence to demonstrate that from the income generated from the parental property the properties have been purchased. In absence of any such material and evidence on record, the plaintiff has failed to discharge his burden of proof. Therefore, it is presumed that the properties owned by defendant No. 1 and his wife Urmila are self acquired properties and have been purchased from income generated from nucleus of joint hindu family.
10)The trial Court after appreciating the evidence and materials on record has recorded the finding that the plaintiff is entitled for 1/5th share of land described in Schedule-A, 1/5th of house described in Schedule -B and 1/3rd share of amount deposited in Gramin Bank to the tune of Rs. 10000/- and sum of Rs. 18000/- earned from the sale of crop. Being aggrieved by the judgment and decree the appellant has preferred the first appeal before this Court for partition of the entire properties mentioned in the Schedule A, B and C of the plaint.
11) Learned counsel for the appellant would submit that learned Court below has committed material irregularity and illegality in appreciating the facts and evidence on record. The plaintiff has categorically deposed before the learned trial Court that properties mentioned in Schedule A, B and C are joint hindu family property and he would further submit that proof of existence of a joint family does not lead to presumption that property held by any member of the family is not a joint property, burden rests upon anyone asserting that any item of the property is joint, but where it is established that family possessed some joint property which form 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, therefore, the judgment and decree is liable to be quashed. He would refer to judgment rendered by the Hon'ble Supreme Court in case of Mallesappa Bandeppa Desai and another vs. Desai Mallappa alias Mallesappa 7 and another 1 and rely on paragraph 15 which is extracted below:-
"15. In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/- in 1925 (Ex. B-4). We do not know what the income of the said properties was; obviously it could not be of any significant order; but, in our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners. But,, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint family income. Therefore, apart from the fact that Neelamma was consulted and agreed to join the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds. This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which be was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial court restored."
12)He would further refer to judgment of the Hon'ble Supreme Court in case of D.S. Lakshmaiah and Another vs. L. Balasubramanyam and Another 2 and rely on paragraph 18 which is extracted below :-
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
13)He would further refer to judgment of the Hon'ble Supreme Court in case of K.V. Narayanswami Iyer and others vs. K.V. Ramakrishnan Iyer 3 and rely on paragraph 15 which is extracted below :-
"15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property In the name of any member of 1 AIR 1961 SC 1268 2 (2003) 10 SCC 310 3 AIR 1965 SC 289 8 the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. (Vide Amritlal Sen & ors., v. Surath Lal Sen & others(1) Appalaswami v. Suryanarayanamurthy & others."
14) On the other hand learned counsel for the defendants would submit that the judgment and decree passed by the learned trial Court is just and proper. The learned trial Court has passed well reasoned order after appreciating the materials and evidence on record and also evidence of DW/1, DW/2, DW/3 and DW/4, therefore, it is not liable to be set aside. He would refer to judgment passed by the Hon'ble Supreme Court in case of Rangammal vs. Kuppuswami and Another 4 and rely on paragraph 45 which is extracted below:-
"45. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone else's property meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiff's joint family in regard to which decree for partition is sought."
15)He would further submit that the plaintiff has failed to prove that the properties have been purchased from the nucleus of the family and further failed to prove that the properties which are in the name of defendant No. 1 and his wife have been purchased from the income generated from joint hindu family property, as such the finding recorded by the trial Court is perfect, legal, justified and not liable to be interfered with.
16)By analysing the pleadings made by the parties, evidence adduced before the trial Court, it is quite vivid that the defendant No.1 has not purchased the properties which are in his name and his wife's name from income of ancestral property. It is pertinent to mention here that in the written statement filed by the defendants, it has been specifically pleaded that these properties are self acquired properties, which has not been rebutted by adducing cogent evidence by the plaintiff.
17)It is well settled that the burden is on the person who alleges existence 4 (2011) 12 SCC 220 9 of Hindu Undivided Family to prove the same. Proof is required not only with respect to jointness of family but also with respect to fact that property concerned belongs to joint Hindu Family, unless there is material on record to show that the property is the nucleus of joint Hindu Family or that it was purchased through funds coming out of this nucleus. It cannot be said that it is joint Hindu family property. Hon'ble the Supreme Court in Bhagwat Sharan (Dead Through Legal Representatives) Vs. Purushottam & others 5, has held at paragraph 13, 21 & 28 as under:-
"13. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property (1955) 1 SCR 1 (2003) 10 SCC 310 (1960) 2 SCR 253 (2007) 1 SCC 521 has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.
21. An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In paragraph 6 the averment was that the defendants constituted trading Joint Hindu Family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in our view there is no clear-cut admission. The allegation made was that the minors were represented by defendant nos. 1-3, who were head of their respective branches. In reply to this it was stated that defendant nos.1-3 were neither the head or the karta, nor the mortgage transaction was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family.
28. As far as the agricultural lands are concerned the trial court decreed the suit in respect of the agricultural lands on the basis that Madhav Prashad and his brother Umrao Lal and their successors constituted an HUF. The said lands having been bought out of the funds of the HUF would be treated to be the property of the HUF, even though they may have been entered in the name of any other 5 (2020) 6 SCC 387 10 person. In view of the above discussion, and the fact that we have held that the plaintiff has failed to prove that there is an HUF, we are not inclined to agree with the finding of the trial court."
18)Hon'ble the Supreme Court in Adiveppa & others Vs. Bhimappa & another 6, has held at paragraph 19 to 23 as under:-
"19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See- Mulla, Hindu Law, 22nd Edition Article 23 "Presumption as to co-parcenary and self acquired property"- pages 346 and 347).
20. In our considered opinion, the legal presumption of the suit properties comprising in Schedule 'B' and 'C' to be also the part and parcel of the ancestral one (Schedule 'D') could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs. It was also for the reason that the plaintiffs themselves had based their case by admitting the existence of joint family nucleolus in respect of schedule 'D' properties and had sought partition by demanding 4/9th share.
21. In our considered opinion, it was, therefore, obligatory upon the plaintiffs to have proved that despite existence of jointness in the family, properties described in Schedule 'B' and 'C' was not part of ancestral properties but were their self-acquired properties. As held above, the plaintiffs failed to prove this material fact for want of any evidence.
22. We have, therefore, no hesitation in upholding the concurrent findings of the two Courts, which in our opinion, are based on proper appreciation of oral evidence.
23. Learned counsel for the appellants took us through the evidence. We are afraid we can appreciate the evidence at this state in the light of what we have held above. It is not permissible."
19)From above stated legal position, it is well settled legal position that burden lies upon the person who alleges existence of Hindu undivided family to prove the same and from the nucleus of the joint Hindu family property the suit properties have been purchased in which he wants partition. Now, coming to the facts of the case, considering the evidence available on record, it is quite clear that the plaintiff failed to establish that the properties which have been purchased by defendant No. 1 is from the income generated from nucleus of joint hindu famil property. In absence of any such cogent evidence, material on record, the trial Court 6 (2017) 9 SCC 586 11 has rightly allowed the suit in part and granted only 1/5th share of land described in Schedule-A, 1/5th of house described in Schedule-B and 1/3rd share of amount deposited in Gramin Bank to the tune of Rs. 10,000/- and sum of Rs. 18,000/- earned from the sale of crop and negated the claim for rest of the property as he failed to prove that it is joint Hindu family property. As such, there is no perversity or illegality in the judgment and decree passed by the trial Court warranting any interference by this Court.
20)Accordingly, the first appeal being devoid of merit is liable to be and is hereby dismissed.
21)A Decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh