Jai Dev vs Firm Charanji Lal Kishan Chand etc.

D.B. Lal, J.—Firm Gharanji Lal Krishan Chand obtained a money decree against Sham Lal and when they started their execution, proceedings, Jai Dev came with the objections, under Order 21, Rule 58 of the, Code of Civil Procedure. The attachment was sought for the undivided share of ShamvLal, in his ancestral property previous khasra Nos. 209, 225/215 nun and 210 nun, situate in village urala, Tehsil Joginder-nagar,, District mandi, over which at present a shop is constructed, and household property on khasra numbers 5988, 5991, 5992 and 5993 situate in the abadi of Mandi. Jai Dev objected that Sham Lal although his son had no share in the properties. The case of the firm Charanji Lal Krishan Chand was that both Jai Dev and Sham Lal were joint and formed a joint coparcenary. The two properties belonged to joint family and the undivided share of Sham Lal was liable to attachment and sale in execution of the decree.

The executing Court dismissed the objections under Order 21, Rule 58 and Jai Dev filed a regular suit under Order 21, Rule 63 of the CPC in the Court of the Senior Subordinate Judge, Mandi. This suit was dismissed and the present appeal is directed against the judgment of the Senior Subordinate Judge, Mandi.

The case in the plaint was that the Plaintiff Jai Dev constructed the shop at Urala and similarly the house in Mandi was his persona 1 property. He was not a member of coparcenary with Sham Lal. As regards the shop at Urala, it was also stated in the alternative that it belonged to Goddess of which a statute is installed therein. About the house at Mandi, the Plaintiff''s case was that only half share belonged to Jai Dev. It was then averred that Sham Lal resided separate from the Plaintiff and as such he had no share in the property belonging to Jai Dev. The defence of the decree holder was that he has attached only half share in the house and in case it did not belong to Jai Dev he should have no grievance for it. Regarding Urala shop the case of the Defendants was that it was coparcenary property and Sham Lal had his undivided share in it. Similarly Sham Lal had an undivided share in the house. The said share of Sham Lal was liable to attachment in the money decree against Sham Lal. It was thus for the Plaintiff Jai Dev to prove that Sham Lal had no saleable interest in the property. In this connection the learned Counsel put forward an argument that a kind of negative burden of proof lay upon the Plaintiff. If a party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the existence of such facts, it is as such his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. When an affirmative fact is to be established direct evidence to prove that fact can be adduced and the Court has to make up its mind as to its credibility and sufficiency but when a negative fact has to be proved the Plaintiff can be expected to do nothing more than to subsantiate his allegations prima facie. Thus the degree of proof in regard to the affirmative and negative fact cannot be lost sight of and the present case will have to be considerd inasmuch as the Plaintiff is required to prove ex-facie the case made by him in the plaint. In Baijnathprasad Jagannath Chattarpure and Ors. v. Goswami Rameshpuri Guru Maheshpuri Gosai AIR 1955 Nag 41 it was categorically stated that the burden of proving that the property is not liable to attachment and sale in execution of the decree of the decree of holder lies on the Plaintiff who was the defeated claimant. We have then to consider how far the Plaintiff has discharged this burden.

As regards the documents, they only go to show that Mukteshwar, father of the Plaintiff, was entered as owner against the house at Mandi. Reference can be made to Ex. P.A., Ex. P.E. and Ex. P.W. 4/A. These are all Khewats of the abadi and the names of Mukteshwar and Jai Dev are found written. If the father and the son were joint for which there is a strong presumption, and the names of Mukteshwar and Jai Dev were written, the undivided share of Sham Lal was also included there. In Nageshar Baksh Singh v. Mt. Ganesha AIR 1920 PC 46 their Lordships held that given a joint Hindu family, the presumption is until the contrary is proved, that the family continues joint. The presumption is peculiarly strong in the case of the sons of one father. Taking assistance from this observation it was for Jai Dev to prove that a partition had taken effect and that Sham Lal lost his interest in the joint family property. Although there was no presumption that the joint family did possess a joint family property, yet in the face of the Khewat entries or even the shop entries in Jamabandies and Misal Haqiat of Urala it was not proved that any separate share was allocated to Sham Lal. If the name of Jai Dev was entered the presumption of jointness was nonetheless there and Sham Lal will get his undivided share being a member of coparcenary. The four documents relating to Urala are Ex. P.C., Ex. P.H. and Ex. P.F. the Misal Haqiat of 1964 and Ex. P.G. the Jamabandi of 1956-57. In Ex. P.C. and Ex. P.H. Jai Dev is entered while in Ex. P.G. ownership as well as occupation is entered in the name of the residents of the village. Ex. P.H. appears to be irrelevant because it deals with a different khasra number. Again the entry in the name of Jai Dev will not oust the title of Sham Lal who was joint in his status with him. This state of jointness exhihibid by the documents is supported by oral evidence.

Tulsi Ram (P.W. 5), Lalu Ram (P.W. 6), and Tek Chand (P.W. 7) besides the Plaintiff stated about the title for the house at Mandi. It was the case of the Plaintiff that he inherited this house from one Kanhiya but none of these witnesses was able to connect the pedegree of the Plaintiff with Kanhiya. Tulsi Ram (P.W. 5) and Tek Chand (P.W. 7) stated that they were not sure if Mukteshwar had also a share in this house. If that was so the house was ancestral property in which Sham Lal had a share. The statement of Jai Dev (P.W. 1) is that he had only half share in the house. The Defendant No. 1 has attached only the remaining half share and perhaps Jai Dev will have no objection to that attachment. Jai Dev (P.W. 1) further admitted that there was no partition between him and Sham Lal. This almost clinches the issue. The family is still joint and Sham Lal will have an undivided share in these properties. Harnam Singh (P.W. 4) produced the Khewat Abadi and so his statement is goo d for nothing. Anant Ram (P.W. 2) and Paras Ram (P.W. 3) came to state about the shop. According to them the shop was constructed from the income of the land. Sham Lal comes and resides in the shop. Paras Ram (P.W. 3) could not tell if the land from whose income the shop was constructed was ancestral land. These statements definitely indicated that the shop was the creation from ancestral funds and both Jai Dev and Sham Lal will have a joint interest in it. Thus the Plaintiff''s evidence does not prove partition. Rather it was established that both Jai Dev and Sham Lal are joint in status. Both the house and the shop are joint family properties. Sham Lal has an undivided share in it.

The Defendants'' witnesses Kishan Chand (D.W. 1), Bhagi Rath (D.W. 2) and Sohan Ram (D.W. 3) have all stated that the family is joint and that the two properties are ancestral. The learned lower Court rightly believed their statements.

It was contended on behalf of the Appellant that the issue was not properly framed but when the parties very well knew the points in controversy between them and led evidence in support of such points in controversy, the mere drafting of an issue in a particular manner will be immaterial. That apart, the issue itself cannot be stated to be wrongly drafted. At any rate the Appellant was not prejudiced in any manner. It was then contended that sons in Punjab could not claim partition during the life time of their father. But for this some evidence was required to be led on custom of like nature. The dispute relates to a property situate in Mandi which is definitely not a part of Punjab. The plea regarding custom was not even taken at any stage in the suit. The only draw back is that the purchaser of the undivided interest of a coparcener under a valid private sale or in execution of a decree against the coparcener gets only an equity to enforce the coparcener''s right as against the other coparceners by a suit for a general partition. There is no impediment in getting their share attached or even sold in execution of the decree. Thus it was rightly decided by the learned Senior Subordinate Judge that Sham Lal had a saleable interest in the property and the same could be attached or sold in execution of the decree. The appeal has no force and the same is dismissed with costs.