Manohar Singh vs Ajaib Singh and Others

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of the Additional District Judge accepting the appeal filed by the plaintiffs, thus decreeing their suit.

Briefly put, plaintiffs filed a Suit for declaration to the effect that land measuring 7 bighas and 15 biswas and a double storey house consisting of two rooms, one verandah and two chobaras, as shown in the site plan annexed with the plaint, is a joint Hindu Family Coparcenary property of the plaintiffs and defendant No. 2 and that the decree dated 19.8.1983 suffered by defendant No. 2 in favour of defendant No. 1 is collusive, illegal and not binding upon the plaintiffs with a further relief that defendant No. 1 be restrained from dispossessing or interfering in their joint possession of the land in dispute.

Defendant Chhaja Singh, father of the plaintiffs and grand father of defendant No. 1 the appellant did not put in appearance despite service and so was proceeded ex-parte by the trial Court. Suit was contested by defendant No. 1 - the appellant. Claim set up by the plaintiffs was resisted stating that plaintiffs and defendant No. 2 do not constitute a joint Hindu Family nor the suit property is joint Hindu Family property/properties. It was further averred that it is wrong to suggest that plaintiffs are Coparcenars and that defendant No. 2 - Chhaja Singh is Karta of the Joint Hindu Family. Accordingly the decree suffered by defendant No. 2 in favour of defendant No. 1 is perfectly valid and just. According to the answering defendant, infact this land measuring 7 bighas and 15 biswas was purchased by defendant No. 2 from one Sant Singh son of Ghisu about 15 years earlier by means of a registered sale deed and so same was his exclusive property. So, any decree suffered by defendant No. 2 in favour of defendant No. 1 cannot be assailed by the plaintiffs. Even otherwise the joint Hindu Family property was partitioned sometime in the year 1982 vide which half share in a truck bearing No. HYA-1590 fell to the share of defendant No. 1 but defendant No. 2 (Chhaja Singh) purchased the truck from defendant No. 1 and that the physical possession of the property in dispute was handed over to defendant No. 1 when this family settlement took place.

On the pleadings of the parties a number of issues were framed but primarily the contest revolved around the following issues:-

"2) Whether the suit property is coparcenary of the plaintiffs and the defendants as alleged by the plaintiffs in para 1 of the plaint? OPP.

6) Whether the decree dated 19.3.1983 suffered by defendant No. 2 in favour of defendant No. 1 being collusive, is not binding upon the plaintiffs? OPD."

The trial Court on the basis of evidence came to the conclusion that the plaintiffs failed to prove that the suit property was coparcenary property of the plaintiffs and the defendants. Similarly, the court came to the conclusion that there is no basis to hold that decree date 19.8.1983 suffered by defendant No. 2 in favour of defendant No. 1 is collusive and hence not binding upon the plaintiffs. Resultantly, issue No. 2 was decided against the plaintiffs and issue No. 6 was decided in favour of the defendants. The Court after examining the evidence led in respect of the remaining issues finally ordered dismissal of the suit.

Before the lower appellate Court the matter was once again examined on fact as well as law. Challenging the findings recorded by the trial Court, the counsel for the appellants argued that the trial Court has infact erred in law in not properly construing the evidence led which has consequently resulted in failure of justice. According to the counsel, there is ample evidence on record to suggest that the house in dispute is the ancestral house of the parties. Similarly, the truck, which is stated to have been fallen to the share of defendant No. 1, was infact pur- chased after selling the ancestral agricultural land. Otherwise too, except for the ancestrial property of the parties Chhaja Singh did not possess any self acquired property and so in view of un-impeachable evidence on record the only inference would be that the land purchased and subject matter of the appeal was infact pur- chased from the proceeds of the land sold by Chhaja Singh - coparcenary property. After considering the matter the Court finally came to the conclusion that the property in dispute is joint Hindu Family/Coparcenary Property and so the decree suffered by Chhaja Singh in favour of Manohar Singh - the present appellant is il- legal and does not bind the appellants -- the plaintiffs in any manner. Accordingly, the appeal was accepted thus decreeing the suit filed by the plaintiffs.

Challenging the findings recorded by the lower appellate Court the counsel for the appellant has termed these to be wholly illegal and otherwise un-warranted on facts as well as law. According to the counsel, there is no presumption in law that a Joint Hindu Family possess any joint property and in the absence of any clear evidence on record a person shows to be the owner of the property is deemed to hold on his own. Elaborating, the counsel argued that in the present in- stance admittedly the land in dispute has been purchased by Chhaja Singh by a registered sale deed and so the necessary inference ought to have been that the same is self acquired property of Chhaja Singh. This being so, any transfer made by Chhaja Singh in favour of the appellant could not be termed to be illegal in any manner. Thus, the findings of the lower appellate Court deserve to be set aside. In support of his submission, the counsel for the appellant placed reliance upon the following decisions of the apex Court;

i) Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, ; and

ii) Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh AIR 1960 SC 1076.

Before examining the ratio of the aforesaid judgments of the apex Court and their applicability as per facts of the present case, it would be more appropriate to keep in view the conclusion arrived at by the Court below, on the basis of evidence adduced. Admittedly, the parties are near relations i.e. the plaintiffs are sons of Chhaja Singh whereas present appellant - Manohar Singh is Chhaja Singh''s grand son. It has come on record that Chhaja Singh sold joint Hindu Family property to Sarvshri Bhagat Singh and others and it is thereafter that Chhaja Singh purchased the land from Jaswant Singh measuring 7 bighas and 15 biswas, now subject matter of adjudication. Except for the land which Chhaja Singh sold to Bhagat Singh and others and subsequently purchased he did not possess any other property except the house in dispute. The necessary inference would be that Chhaja Singh did not own any exclusive property and so there did not exist any nucleus from which he could purchase the property in dispute. The lower appellate Court keeping this in view held that land purchased by Chhaja Singh from Jaswant Singh (though by registered sale deed) retained its character of a Joint Hindu Family property. The onus initially placed upon the plaintiffs to prove that the property in dispute is a joint Hindu Family property stood discharged. Thus, the sole question which needs some consideration is whether transfer by Chhaja Singh in favour of Manohar Singh, his grand son, could be up held thereby depriving the plaintiffs of their right to share in the ancestral property of the plaintiffs and Chhaja Singh. According to the Hindu Succession Act, a Coparcenar acquires a share in the Joint Hindu Family property/coparcenary property from his birth. Thus, the plaintiffs and Chhaja Singh infact had share in this Joint Hindu Family property to the extent of l/3rd each. This fact has also been admitted by the appellant in his plaint, exhibit PW2/A, reference to which has been made by the lower appellate Court. Similarly, the appellant while filing the suit against Chhaja Singh clearly made mention of the fact that even the double storey house was a Joint Hindu Family property and coparcenary. This being the accepted position, the lower appellate Court rightly came to the conclusion that agricultural land as well as the house in dispute was the coparcenary property of the plaintiffs and their father Chhaja Singh and so the decree suffered by Chhaja Singh in favour of the present appellant without being for consideration or on account of any legal necessity does not bind the plaintiffs in any manner. The apex Court''s decision relied upon by the appellant (Srinivas Krishnarao Kongo''s case supra) does not lend any support to the case of the appellant. The Court while examining the precise point which is under consideration approved the earlier decision of the Privy Council in Appalaswami v. Suryanarayanumurti AIR 1947 PC 189, wherein it was held as under:-

"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 accrued, 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."

Similarly, in Mudigowda Gowdappa Sankh''s case (supra) the Court merely reiterated the earlier view of the Privy Council (Appalaswami''s case supra) as under:-

"The law on this aspect of the case is well settled. Of course 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 coparcenery 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."

Cumulative reading of the aforesaid two decisions of the apex Court lead to the only conclusion that whereas there is no presumption that a Hindu family possesses any joint property and the initial burden to prove is upon the person who claims it as a coparcenary property but in case he is able to establish that property has been purchased from the nucleus of the joint Hindu family property or that the fact has been admitted that property has been purchased from the funds of the joint Hindu family property then in that eventuality the onus is upon the person who sets up a case that such a property is not joint Hindu family property. As observed in the earlier part of the judgment the lower appellate Court on the basis of evidence and especially the appellant''s own admission in the plaint, exhibit PW2/A has come to the conclusion that house as well as the property in dispute is the joint Hindu family Property of the plaintiffs and Chhaja Singh. The conclusion arrived at by the lower appellate Court cannot be termed to be illegal and otherwise un-warranted on facts. Thus finding no merit in the appeal the same is dismissed.

No costs.