Mange Ram and others vs Lalita Devi and others

B.S. Yadav, J.—The facts giving rise to this Second Appeal are that the house in dispute situated at Rohtak was sold by Kundan Lal Defendant No 5 to Defendant Nos. 1 to 4 by means of a registered sale deed (Copy Exhibit D. 8) dated 28th March, 1958. On the same day Kundan Lal executed rent note (Copy Exhibit D. 9) in favour of the vendees. Thus Kundan Lal continued in possession of the house in dispute as a tenant under the vendees. The vendees filed an ejectment application against Kundan Lal which was dismissed on 25th May, 1965 by the Rent Controller. They filed an appeal but the Appellate Authority also dismissed the same on 10th March, 1967. The vendees i.e. Defendant Nos. 1. to 4 filed Revision Petition in this Court which was accepted on 10th April, 1969 vide order, copy Exhibit D.10 and ejectment order was passed against Kundan Lal to whom two months'' time was allowed to vacate the demised premises. The Plaintiffs filed the instant suit on 2nd June, 1969. The Plaintiff Nos. 1 to 5 are the sons of Kundan Lal while Plaintiff No. 6 Smt. Maina Wati is his wife. According to the plaint allegations, the house in dispute was joint Hindu family property of Plaintiff Nos. 1 to 5 and Kundan Lal Defendant No. 5 as it was purchased from the income of the Joint Hindu family consisting of the above persons. Kundan Lal had no right under Hindu Law to sell away the house without consideration and legal necessity. The sale in question was effected without consideration and legal necessity. They i.e. Plaintiff Nos. 1 to 5 were residing in the house as owners. The Plaintiffs claimed the following two reliefs:-

(a) a declaration that Plaintiff Nos. 1 to 5 were in possession of the house in dispute as its owners that Plaintiff No. 6 was entitled to reside in the house during her life-time and that the order of eviction obtained by Defendant Nos. 1 to 4 against Defendant No. 5, was not binding on the Plaintiffs, and

(b) a permanent injunction restraining the Defendants Nos. 1 to 4 from interfering with or obstructing the possession of the plaintffs over the house in dispute.

The suit was contested by Defendant Nos. 1 to 4. They denied the allegations that the house in dispute was a joint Hindu family property of Plaintiff Nos. 1 to 5 and Defendant No, 5 or that they formed joint Hindu family. They pleaded that sale had taken place for consideration and legal necessity. The sale was affected by Kundan Lal to discharge antecedent debts amounting to Rs. 20,200/- due to Defendant Nos. 1 to 4 and that Rs. 7,000/- were paid in cash to him before the Sub Registrar at the time of the registration of the sale deed. They were in possession of the house through the tenant (i. e. Defendant No. 5) against whom they had obtained an order of eviction. Some other pleas were also raised as will be clear from the following issues framed by the learned trial Court.

Whether the house in dispute is a coparcenary property ?

Whether the impugned sale was effected for consideration and legal necessity ?

3 If issue No. 2 is proved, whether the sale is not binding on the Plaintiffs ?

Whether the suit is within time ?

Whether the suit is collusive ?

Whether Smt. Mainawati has a right of residence in the house in dispute and is not bond by the sale ?

Whether the Plaintiffs will have to refund the sale consideration to the vendees in case of the suit being decreed against them ?

Relief.

That court discussed issue Nos. 1 to 3 together and held that the Plaintiffs had failed to prove that the house in dispute was a coparcenary property of the Plaintiffs and Defendant No. 5 and that the impugned sale was for consideration and legal necessity. Under issue No. 4 it was held that the suit was within limitation. Under issue No. 5 it was held that the suit had not been filed in collusion with Kundan Lal, Defendant No. 5. Under issue No. 6 it was held that Smt. Mainawati had no right of residence in the house. Issue No. 7 was found against the contesting Defendants. As a result of the findings under issue Nos. 1 to 3, the Plaintiffs'' suit was dismissed.

Feeling aggrieved, the Plaintiffs filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Rohtak. Before him the findings on issue Nos. 1, 2 and 3 were challenged on behalf of the Plaintiffs while the findinqs rendered by the trial court under issue No. 4 was challenged on behalf of the contesting defendents. He held that though Plaintiff Nos. 1 to 5 and Kundan Lal formed a joint Hindu family but there was no evidence to show that the house in dispute was purchased by Kundan Lal from the joint family funds, it was also held that the antecendent debt had not been established nor the legal necessity for Rs. 7000/- had been proved. Finding on issue No. 4 was confirmed though on different grounds. As a result of the finding under issue No. 1 the appeal was dismissed. The Plaintiffs have now come to this Court in Second Appeal. Before me only issue No. 1 was argued and, therefore, I will discuss that issue only.

The learned Counsel for the Appellants argued that the lower Appellate Court has given a finding of fact to the effect that Kundan Lal (Defendant No. 5) was joint with his father Chandan Lal and that the Plaintiffs are sons of Kundan Lal and the sons must be presumed to be joint with Kundan Lal. There is no dispute with that finding. However, in law there is no presumption that a joint family possesses-coparcenary property or that the property held by any member of the joint family is joint of the family. In this respect reference can be made to Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, , wherein it was remarked:

The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral land and the magnitude of the acquisitions made, the former could not be held to be the foundation for the latter, and on the authority of the decision of the Privy Council in-''Appalaswami v. Suryanarayana-murti'', A. I. R. 1947 P. C 189 at P. 192(C) held that the initial burden which lay on the Plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged.

The law was thus stated in that case:

The Hindu law upon this aspect of the case is well settled.. Proof of the 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.

The learned Counsel for the Respondents did not dispute the above proposition but argued that in the present case the joint family had nucleus from which the house in dispute was purchased by Kundan Lal on 17th April, 1945 from one Sultan Singh, as recited in the sale deed Exhibit D. 8 by which Kundan Lal had sold the house to Defendant Nos. 1 to 4. Both the learned courts below have discussed the Plaintiffs'' evidence in detail and have given a finding that the Plaintiffs-have failed to prove that the joint family had substantial nucleus from which Kundan Lal could purchase the house. It is a finding of fact as held in Mallappu Girimallappa Betgeri and Ors. v. R. Yellappagouda Patil A. I. R. 1959. S. C. 906 and it is not liable to be interfered with in second appeal. In that case their lordships remarked:-

The sufficiency of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question.

The learned Counsel for the Respondents has further placed reliance upon Sadhu Vs. Kishni, wherein a Division Bench of this Court held

The scope of second appeal as envisaged by Section 100 of the Civil P. C. and Section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this Court as well as by the final court, that is, the Supreme Court of India. The learned Counsel for the Appellant has actually made a reference in this regard to Diety Pattabhiramaswami v. S Hanymayya, A. I. R. 1959 S. C. 57; Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, ; Afsar Sheikh and Another Vs. Soleman Bibi and Others, . These pronouncements, in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact.

The above argument of the learned Counsel for the Respondents has force. As the finding of fact arrived at by the learned courts below to the effect that Kundan Lal had no substantial nucleus to purchase the suit house from the joint family funds, therefore, it will have to be held that the house in dispute was separate property of Kundan Lal.

On merits also the Plaintiffs have failed to prove their case. In the sale deed Exhibit D. 8 there is a recital to the effect that after purchasing the house from Sultan Singh in 1945, it was reconstucted by Kundan Lal at his own expenses In this sale deed Kundan Lal has specifically recited that the house in dispute was his self-acquired property. It is to be noted that Kundan Lal is alive but surprisingly enough he has not appeared in the witness-box to state that in what circumstances he had acquired the house in dispute.

The learned Counsel for the Respondents argued that from the Plaintiffs'' evidence it is clear that Kundan Lal and his father carried on the cloth business and, therefore, it must be presumed that the business was joint of the family and the. house must have been purchased from the income of the said business. However, the Plaintiffs'' evidence on this point is not reliable. P.W. 2 Jai Chand in his examination-in-chief has of course, stated that Chandan Lal and Kundan Lal jointly carried on the shop. However, in cross examination he faltered. This witness is aged only 65 years. He has stated that Chandan Lal and Kundan Lal left that shop 50 years earlier while Chandan Lal died 40 or 45 years back. The statement of this witness was recorded on 4th January, 1973. Thus the family business came to an end during the life-time of Chandan Lal. This witness has also stated that Chandan Lal carried on business in his own shop but he did not know whose shop was adjoining that shop. He had admitted that for the last 20 years Kundan Lal has left the cloth business and was employed at a cloth shop. As noticed earlier he had stated that Kundan Lal and Chandan Lal left the shop 50 years earlier. P. W. 4 Charanjit Lal has stated that upto the time of his death Chandan Lal used to carry on the shop in Bara Bazar (Rohtak). He also stated that the said shop was sold by Kundan Lal about 35 or 40 years earlier. According to him Kundan Lal was doing cloth business in the Mandi. In his examination-in-chief he stated that Chandan Lal and Kundan Lal were joint and the house was constructed by Kundan Lal from the money he got from his father. There is nothing on the file to show as to how much money he got from his father. As noticed earlier, Chandan Lal had left the cloth business 50 years earlier. There is also nothing on the file to show as to whom and for how much money Kundan Lal had sold the shop, said to have been inherited by him from Chandan Lal. In fact there is no documentary evidence to show that Chandan Lal owned any shop. P.W 5 Mata Din is unable to state as to when Kundan Lal left the cloth business. According to him, Kundan Lal was currying on the shop jointly with Faqir Chand who is said to be his brother No other witness has stated that Faqir Chand was also joint in business with his father Chandan Lal or with Kundan Lal. Lastly is the statement of Mange Ram Plaintiff. He has stated that his father Kundan Lal had a brother named Faqir Chand. He has also stated that Faqir Chand and Kundan Lal separated in 1949 and in partition the house fell to the share of Kundan Lal. None of the other witnesses of the Plaintiffs have stated that Faqir Chand had any interest in this house. Mange Ram does not know if there was any writing about the said partition. He is also not prepared to admit that the house in dispute was purchased by Kundan Lal from. Sultan Singh. He also does not know that in which year his father left the business. In the face of such evidence it is difficult to hold that Kundan Lal had substantial joint family nucleus from which he purchased the house in dispute. It appears that the present suit has been got filed by Kundan Lal as Mange Ram Plaintiff does not even know how much expenses have been incurred on the present litigation.

For the foregoing reasons I do not find any force in the present appeal and dismiss the same with costs.