Lakhan Gope and Others vs Dahu Gope (deceased) represented by L.Rs. and Others

Mungeshwar Sahoo

The contesting defendants have filed this First Appeal against the Judgment and Decree dated 28th April, 19777 passed by Sri Bhagwan Prasad Singh, the learned 2nd Addl. Subordinate Judge, Biharsharif, Nalanda in title suit No. 104 of 1969 / 19 of 1974 decreeing the plaintiff-respondent''s suit for partition to the extent of half share. The plaintiff-respondents filed the aforesaid suit claiming partition of the suit properties described in Schedule II and III of the plaint alleging that Somer Gope had 3 sons, namely, Etwari Gope, Nemchand Gope and Bandhu Gope. 40-45 years ago, Etwari Gope separated from his brothers Nemchand Gope and Bandhu Gope. Thus two brothers, namely, Nemchand Gope and Bandhu Gope remained joint and their descendants are still joint. The plaintiffs are the sons and grand sons of Nemchand Gope whereas the defendants are the descendants of Bandhu Gope. Lakhan Gope, the defendant No. 1 is the karta of the family. The ancestral properties and the purchased property of joint family is detailed in Schedule 2 whereas the animals and movables have been detailed in Schedule 3 properties. The plaintiffs claimed unity of title and possession over the suit properties and filed the suit for 8 annas share.

The defendant No. 1, 3 and 6 filed separate joint contesting written statement. The defendant No. 2 and 10 filed supporting written statement jointly. Defendant No. 2, Tahal Gope died and his widows and others were substituted.

According to the contesting written statement, the case in short is that in fact 40-45 years ago, there had already been partition between the 3 brothers, i.e., sons of Somer Gope. The case of plaintiff that only Etwari Gope separated is denied. The allegation that Lakhan Gope, defendant No. 1 is karta is also denied. It is submitted that even 26 years ago, there had been partition between the sons of Bandhu Gope, i.e., defendant No. 1 and defendant No. 2. After partition, the properties which are standing in the name of Lakhan Gope and his sons have been acquired by Lakhan Gope exclusively out of his own earning, he was employed as Chowkidar between the year 1935 to 1965. The defendant No. 1 has purchased 32 decimals of land through registered sale deed dated 26.05.1958 with the plaintiff Dahu Gope but the said land was also partition between them. The defendant had purchased 2 acres and 60 decimal through the registered sale deed dated 16.04.1966 which are in the name of his four sons and in the name of one son of Tahal Gope. The plaintiff have got no concern with this land. Lakhan Gope and Tahal Gope also purchased 56 1/2 decimals on 18.04.1956 in the name of 4 sons of Lakhan Gope and one son of Tahal Gope. The plaintiff had no concern with this land also. In all these lands, Lakhan Gope had 4 shares whereas Tahal Gope had got only one share. Lakhan Gope also purchased plot No. 1416 from Bhaju Gope through the registered sale deed dated 27.11.1947. Subsequently, he exchanged the same with Dahu Gope, the plaintiff 20 years ago with plot No. 2419, thereafter, he constructed the building on the said plot. The plaintiff constructed his house on plot No. 1414 exchanged land from defendant which was purchased by Lakhan Gope and Tahal Gope. The unity of title and possession with respect to the suit properties was denied.

On the basis of the aforesaid pleadings, the learned Court below framed the following issues :

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got valid cause of action for the suit?

(iii) Whether there is unity of title and possession between the parties in respect of the suit lands?

(iv) Are the plaintiffs entitled to a decree for partition? If so, to what extent and in what properties.

(v) To what relief or reliefs, if any, are the plaintiffs entitled to?

After trial, the learned Court below came to the conclusion that there is unity of title and possession between the parties and the defendants failed to prove that the properties acquired in their name is there self acquired properties therefore decreed the suit.

The learned senior counsel, Mr. Devendra Kumar Sinha appearing on behalf of the appellant submitted that some of the plaintiffs are 3rd generation and some plaintiffs are 4th generation from the original founder Somar Gope and likewise the defendant No. 2 is only 3rd generation whereas the defendant No. 3 to 6 and 10 are 4th generation and defendant No. 8 and 9 are 5th generation from the original ancestor, Somar Gope. In such circumstances in the present case, the presumption is very weak. The learned Court below has, therefore, wrongly, not considered this fact of the matter. According to the learned counsel, no doubt, the facts of the case that whether the two brothers, Nemchand Gope and Bandhu Gope remained joint as claimed by the parties or whether both of them also separated when Etwari Gope separated 40-45 years ago as claimed by the defendant is to be ascertained from the evidences available on record but the learned Court below did not consider the evidences oral as well as document produced by the parties in right perspective and has given a wrong finding that both brothers remained joint. The defendant produced the sale deeds standing in the name of plaintiff exclusively, the sale deeds standing in the name of branch of Bandhu Gope or sale deeds standing in the name of branch of defendant No. 1 exclusively right from 1935-65 to say that for long period, the parties were dealing the property separately and enjoying the same as their exclusive property and residing separately but cumulative effect thereof was not considered by the Court below. Although, there is no case made out by the plaintiff that there was sufficient joint nucleuous by the joint family out of which the properties could have been acquired but the learned Court below only on presumption held that there was joint family necleuous by which the properties are acquired in the name of defendant No. 1 and the branch of Bandhu Gope. On the other hand, the defendants adduced evidence showing his separate income but the learned Court below recorded a finding that the properties are joint family properties without considering that there is neither pleading of joint family income nor pleading about nucleous by the plaintiff. The learned counsel further submitted that the learned Court below also did not consider the evidences of the plaintiff who have admitted that the properties have been purchased by Lakhan Gope and also the witnesses of the defendants about the acquisition of the properties. According to the learned counsel, the learned court below committed error while considering the finding of the Pleader Commissioner. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff''s suit should be dismissed with cost.

On the other hand, the learned counsel, Mr. Devendra Prasad, submitted that the learned Court below has considered all the evidences available on record and has recorded the findings. There is no error or illegality in the finding of the Court below. The rent receipts produced by the plaintiff shows that the same are in the name of both the parties. The plaintiffs have adduced evidences to show that there was joint family income and the plaintiff also was earning. The properties have been purchased in the name of karta or in the name of his son and, therefore, the learned Court below has rightly recorded the finding that the properties are joint family properties. According to the learned counsel, there is no pleading of the defendant regarding the manner of partition or date of partition and also which properties were allotted to which of the brothers. Only a pleading has been made to the effect that there was partition. There is no evidence in support of such allegation. The Pleader Commissioner filed the report which has been marked as ext. ''C'' and in his evidence, he categorically stated that no partition took place and the properties are in one block. In such circumstances, the First Appeal is liable to be dismissed with cost.

In view of the above contentions of the parties, the points arises for considering in this appeal is as follows :

(a) Whether there is unity of title and possession between the parties with respect to the suit properties or there had already been partition?

(b) Whether the properties standing in the name of branch of defendants is self-acquired property of defendant or it is joint family property?

Point No. (i) & (ii) :- Since both the points are inter-connected, both the points are decided together. It is admitted position of the parties that Somar Gope had 3 sons. The plaintiffs represented the branch of second son, namely, Nemchand Gope whereas defendants represented the branch of 3rd son Bandhu Gope. According to the plaintiffs, Etwari Gope first son of Somar Gope separated 40-45 years ago from the two brothers Nemchand and Bandhu. The defendant''s case is that all the 3 brothers Etwari, Nemchand and Bandu separated by partition fully. It may be mentioned here that suit has been filed in the year 1969. Therefore, the separation relates to the year 1924-29. The legal position is that there is no presumption that if one member of joint family partitioned, the other members remained joint. Likewise, there is also no presumption that because one member partitioned the other members of the family also separated. There is no dispute about this legal position as has been held by the Apex Court in the case of Bhagwati Prasad Sah and Others Vs. Dulhin Rameshwari Kuer and Another, . Since, there is no presumption in favour of any party in this present case, the plaintiff will stand or fall on the proof of his case. According to the plaintiffs both the brothers remained joint and they are still joint. Although partition of one brother has been admitted by the plaintiff which took place 40-45 years ago. From the genealogical admitted by the parties, it appears that plaintiff No. 1 is the 3rd generation whereas other plaintiffs are 4th generation. The defendant No. 1 and 2 are 3rd generation, defendant No. 3 to 6 and 10 are 4th generation whereas defendant No. 8 and 9 are 5th generation of the original founder of the family. It is settled principle of law that Hindu family is presumed to be joint till the contrary is proved. This presumption of union is the greatest in the case of father and sons and stronger in the case of brothers than in the case of cousins. In the present case as stated above the case is neither between the father, son nor between the brothers but between the cousins and second cousin. It is settled law that there is no strong presumption of jointness in the case of cousin. The farther you go from the founder of family the presumption becomes weaker and weaker because brothers are for the most part presumed to be undivided whereas second cousins are generally presumed to be separated and the third cousins are for the most part separated. Now, let us consider evidences of the parties in the light of the above position of law.

P.W. 1 Dodraj Mahto has stated that Nemchand Gope and Bandhu Gope remained joint and their descendents are still joint. There had been no partition. P.W.3 has stated that the parties are still joint and there had been no partition. P.W.4 has stated that the parties are joint and he has sold some property and the parties paid him when they were joint and came in joint possession of the land. It may be mentioned here that he has admitted in his cross-examination that Lakhan Gope is chowkidar. P.W.5, 6, 7, 8, 10, 11 have all stated that the parties are joint and, there has been no partition. P.W. 12 is one of the plaintiff who is son of plaintiff No. 1, Dahu Gope. He has stated that Lakhan Gope is the karta of the joint family. His father was doing the work of milking. The properties have been purchased from the income of the joint family property. The said properties are not purchased out of the income of Lakhan Gope. Lakhan Gope was always going for execution of the sale deeds. In the cross-examination at paragraph 5, he has stated that 8-9 bigghas land have been purchased. There had been only 1.5 biggha ancestral land to both the brothers, Nemchand Gope and Bandhu Gope. He has admitted that out of the product from the said 1.5 bigghas land, the family could not be maintained and, therefore, they were also earning separately. However, he has again stated that neither he nor his father ever employed and only Lakhan Gope was employed as Chowkidar since long and he was also spending the income in maintaining the family. At paragraph 8 of his cross-examination, he has stated that there are 4 kitha house of the parties. Out of them one is ancestral house and 3 houses are purchased. In the ancestral house, the share of Etwari is separate. He has admitted that his family has separate mess, the family of Tahal Gope has separate mess since after institution of the suit. The other witnesses are not on this point. In the plaint, the only case made out by the plaintiff is that parties are joint and the properties purchased have been purchased out of joint family fund. As discussed above, one of the plaintiff who has been examined as P.W.12 has admitted that the members of the joint family could not be maintained out of the ancestral land which was only about 1.5 bigghas. There are no other sources of income pleaded by the plaintiff. If the family members could not be maintained out of the usufruct of the ancestral property, nothing could be saved. The word "nucleous" means that after the deduction of the expenditure for the family members whatever remains out of the total income, is the saving of the joint family which will form the nucleous. In this present case, except the statement in the plaint, there is nothing on record to support what was the total income out of the joint family property and what is the total expenditure and what is the saving. On the contrary, the plaintiff''s evidence is out of product of the joint family ancestral property, the family could not be maintained. Therefore, there is no question of any nucleous arises. This witnesse has also admitted that neither he nor his father were employed. There is no other source of income pleaded in the plaint nor there is evidence.

It is well settled principle of law that there is no presumption that the joint family possesses joint property. In a suit for partition, if any party claims that any particular items of the property is joint family property, it is for him to prove the same. Here the plaintiff is claiming that the properties which are standing in the name of defendant No. 1 or his sons or in the name of branch of Bandhu Gope is the joint family property. Therefore, the plaintiff must prove that family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that it was purchased with joint family fund such as the proceeds of sale of ancestral property. None of these are the means of legal presumption. It can only be brought to the cognizance of the Court in the same way as any other fact, namely, by evidence. In the present case as stated above, neither there is any pleading nor there is any evidence. On the contrary, plaintiff admitted that out of the income of ancestral property, the family could not be maintained. His father or P.W. 2 himself were never employed. On the contrary, the P.W.12 admitted that since long defendant No. 1 was working as chowkidar. Therefore, the plaintiff himself admitted the separate income of defendant No. 1. Only because the property is standing in the name of Lakhan Gope defendant No. 1 or his sons, there cannot be any presumption, particularly when the separate income of defendant No. 1 is admitted.

The plaintiffs have produced ext.1. From perusal of this ext.1, it appears that it is register-II which is only in the name of Tahal Gope s/o Bandhu Gope with respect to 1 biggha 11 kitha. Ext.1/A, register-II in the name of Lakhan Gope s/o Bandhu Gope regarding 1 biggha 40 katha. This shows that there is separate register-II in the name of sons of Bandhu Gope, i.e., ext.1 is in the name of Tahal Gope whereas ext.1/A is in the name of Tahal Gope, defendant No. 1. These two documents proves that both the brothers were even separate. In such circumstances how can it be said that Nemchand Gope and Bandhu Gope were joint or that the plaintiff and the defendants are joint. These two documents proves the case of the defendant-appellant that even the branch of Bandhu Gope are separate. What for these documents have been produced by the plaintiff is best known to the plaintiff. From perusal of the impugned Judgment, it appears that the learned Court below considering ext.1 held that all these ancestral properties has been recorded in the name of Tahal Gope, therefore, it will not help the defendant. It may be mentioned that which property is recorded in whose name that does not matter. The question is there is separate register-II in the name of both the brothers. There is no explanation by the plaintiff how this two separate Register-II is in the name of two brothers. Separate properties have been recorded. This documents are inconsistent with the case of the plaintiff-respondent.

The learned Court below has not at all considered the ext.1/B.

On the contrary, the defendants have produced ext. ''B'' series. The sale deed. Ext. ''B'' is the sale deed dated 05.08.1965 which is in the name of defendant No. 1. Ext.B/2 is dated 24.03.1954 which is in the name of plaintiffs exclusively. This ext.B/2 has been produced to show that even properties were acquired separately by the plaintiffs, themselves. The defendants are not claiming this property to be their or of the joint family property. Ext.B/1 is dated 23.11.1955 which is in the name of Lakhan Gope and Tahal Gope both the brothers, i.e., the branch of Bandhu Gope. Ext.B/6 is sale deed dated 28.05.1958 which is in the name of plaintiff No. 1 and defendant No. 1 and in this sale deeds, it has been specifically mentioned that the properties has been purchased by them with equal share for which consideration amount was paid separately. If the plaintiff''s case is believed that defendant No. 1 was karta then the properties should have been acquired in the name of karta only. The acquisition of property by plaintiff No. 1 and defendant No. 1 with specification of share indicates that there is separation between the parties. It is the case of the defendant that this property has also been partitioned between them. The learned Court below weigh the effect of this ext.B/6 in the light of the report of the Pleader Commissioner ext.''E'' and D.W.10, the Pleader Commissioner, and observed that since the Pleader Commissioner found no ridge, there has been no partition. However, from perusal of the Pleader commissioner report, it appears that the pleader Commissioners found ridges in the plots. Therefore, in my opinion, the learned Court below has committed error of record. From perusal of paragraph 13 of the lower Court Judgment, it appears that the learned Court below came to the conclusion that the expression "having equal share" occurring in sale deeds ext.B/1 and B/6 has been entered at the instance of Lakhan Gope with ulterior motive and on the basis of these deeds, it cannot be held that Dahu Gope and Tahal Gope had separated from Lakhan Gope. So far this finding of the Court below is concerned, it is only surmises and conjectures. It is not the case of the plaintiff that this expression was got mentioned by Lakhan Gope with ulterior motive. These documents are of the year 1955 - 1958. So far ext.B/1 is concerned, it is not in the name of Dahu Gope. So far ext.B/6 is concerned, this documents had been produced by the defendant to show that the properties were even jointly acquired by the plaintiff and defendant No. 1 and because they were separate the share has been specified. Only because the property has been acquired in joint name, there can never be any presumption that it is joint family property rather it is the property acquired by the persons in whose name the properties stands. The observation of the Court that expression "having equal share" got mentioned by Lakhan Gope is concerned, there is neither pleading nor evidence. It is well settled principle of law that registered sale deed carries presumption that transaction was the genuine one. The execution has been proved by the defendant and, therefore, the onus is on the plaintiff to prove that in fact for ulterior motive, the said expression was got mentioned by the Lakhan Gope. There is no evidence to that effect. Therefore, the observation of the learned Court below is neither here nor there.

D.W. 4, 6 and 13 have all stated that there had already been partition. D.W.4 is son of Etwari Gope. The learned trial Court considering the evidences of these witnesses held that they are incompetent to say about partition. Admittedly, there is no document to prove the partition. It is the case of the parties that the partition took place 40-45 years prior to institution of the suit, i.e., in the year 1924-29. A Division Bench of this Court in Arjun Mahto and Others Vs. Monda Mahatain and Others, following decision of the Apex Court in the case of Bhagwan Dayal Vs. Mst. Reoti Devi, has held that the general principle is that every Hindu family is presumed to be joint but this presumption can be rebutted by direct evidence or course of conduct. When no contemporaneous documents are available, the question whether the parties remained united or separated is to be decided on the facts of each case. The partition in such a case can be proved by the intention of the parties manifested by their subsequent conduct, by their sole and independent enjoyment of the properties. Separation in food and residence for long time among the members of Hindu family, independent transaction of property, separate possession and enjoyment of properties by themselves, no doubt, not conclusive but the cumulative effect of such fact may show that there had been a partition between the brothers during their life time. In the cases of old transaction, when no contemporaneous documents are maintained and when most of the active participants in the transaction have passed away though the burden still remains on the persons who asserts that there was partition, it is permissible to fill up gaps more readily by reasonable inferences then in a case where the evidence is not at all obliterated by passage of time. This decision of the Division Bench has subsequently been followed by this Court in Ganesh Sahu and Another Vs. Dwarika Sao and Others , again in at page 95 and at page 276. In the present case at our hand, as stated above, there is no documentary evidences regarding the proof of partition. There is no presumption of jointness when the plaintiff themselves averred that one brothers separated. Therefore, it is the burden on the plaintiff to prove that two brothers remained joint. Except the oral statements nothing has been brought on record. Ext.1 and 1/A, the documents produced by the plaintiffs themselves indicates that even two brothers, i.e., defendants intersee have separated themselves and register-II tenants Ledger has been opened in their name separately. It is not the case of any of the defendant that these exhibits are wrong. It is not the case of the plaintiff also that there is wrong entry. The defendants have also produced one sale deed of the year 1954 which exclusively stands in the name of plaintiff No. 1. The other sale deeds are in the name of defendant or his son or in the joint name of Lakhan Gope and Tahal Gope which shows that the parties were dealing the property separately since long and the properties are being acquired separately. Whenever, the properties have been acquired jointly, specific shares have been mentioned in the sale deeds. No evidence has been adduced regarding jointness of Nemchand and Bandhu.

As stated above in this case, there is no question of jointness arises because the parties even includes 3rd cousin. The properties are acquired separately since long which shows separate dealings of the properties. Although, the plaintiff have admitted that they are living separately in separate house and messing separately but except this statement, there is nothing on record regarding their jointness. Since there is no presumption, it has to be proved by them by adducing cogent evidence. On the contrary, the defendants have adduced the documentary evidences which proves even the separation between defendants intersee, i.e., the branch of Bandhu Gope. In such view of the matter, the plaintiffs have failed to prove that after separation of Etwari Gope 40-45 years ago both the brothers remained joint. On the contrary, the conduct of the parties subsequent thereof shows that there had already been partition between the 3 brothers as alleged by the defendant. The learned Court below has not considered the evidences in view of the above settled proposition of law. The learned Court below even not considered opening of Register-II separately in the name of the defendants intersee. The learned Court below also not considered the acquisition of the properties separately in the name of the parties since long. Therefore, the finding of the learned Court below on this point that there is unity of title and possession is not sustainable. Accordingly, this finding of the learned Court below is set aside and I find that there had already been partition between the 3 sons of Somar Gope.

So far the case of joint acquisition is concerned as discussed above, there is no pleading about joint nucleous and also there is no evidence about joint nucleuous. On the contrary, the plaintiff P.W.2 admitted that the ancestral properties was insufficient to maintain the family members and that defendant No. 1 had got separate income which is the case of the defendant also. Therefore, the finding of the learned Court below that the properties which have been purchased are joint family property is unsustainable in the eye of law. Accordingly, the finding of the learned trial Court on this point is hereby reversed and I hold that the properties which have been purchased either in the name of defendant No. 1 or with joint name of defendant No. 1 and 2 or in the name of sons of defendant No. 1 are the self-acquired property by the persons in whose name it is acquired and are not the joint family property. The properties which have been acquired exclusively by the plaintiff in the name of plaintiff No. 1 is his exclusive property. Therefore, the properties which are standing in the name of Bandhu Gope branch are not the joint family property and the plaintiffs have got no unity of title and possession with respect to the properties acquired in the name of contesting defendants, therefore, the plaintiffs cannot claim share in the said property.

The defendant No. 2 and 10 have filed separate written statement claiming 1/4th share but they never adduced any evidence in support of their case pleaded. Therefore, the claim is not being decided. In view of my findings, the impugned Judgment and decree are unsustainable. Therefore, this Frit Appeal is allowed and the impugned Judgment and Decree are set aside. The plaintiff''s suit for partition is dismissed with cost of RS.10,000/- to be paid by the respondent to the appellant within two months failing which the appellant shall be at liberty to realize the same through the process of the Court.