Ramnaresh Jain vs Haresh Jain and Others

M.K. Mudgal, J.—The appellant/plaintiff has filed the appeal u/s 96 of the CPC being aggrieved by the judgment and decree dated 29.3.2004 passed by the VII Additional District Judge, Gwalior (Shri R.K. Joshi) in Civil Suit No. 41A of 2004 partly decreeing the suit filed by the plaintiff for partition and possession of his share. In this appeal, the appellant is referred as ''plaintiff and respondents as ''defendants''. The admitted facts are that the deceased-Babulal the real brother of defendant no. 1 Shivcharanlal Jain and uncle (Tau) of other parties had purchased a Plot bearing Registration No. 908/5 vide registered sale deed dated 8.4.1976 in lieu of Rs. 8500/- situated at Phalka Bazar, Lashkar, Gwalior in the name of plaintiff and defendant no. 2 Haresh Jain and Babulal being the guardian of his nephews.

Facts, in brief, of the plaint are that the deceased Babulal real brother of defendant no. 1 Shivcharanlal Jain and uncle (Tau) of other parties had purchased a Plot bearing Municipal No. 1197 Halka No. 30 situated at Phalka Bazar, Lashkar Gwalior vide registered sale deed dated 5.12.97 in the name of plaintiff and defendant no. 2 Haresh Jain. At that time, the shop was situated on the spot in the form of tin shed. Deceased Babulal was in the employment of J.C. Mill and was having separate and independent income from service. He was issuless, so he purchased the suit property under his guardianship in the name of plaintiff and his younger brother Haresh during their minority. The plaintiff and defendant no. 2 Haresh Jain by spending Rs. 50,000/- constructed a triple storey building. The other defendants being in close relations, were also residing with the plaintiff and defendant no. 2 in spite of the fact that the plaintiff and defendant no. 2 were only ones having equal share in the house. The bathroom and latrine situated at the first floor were also jointly used by the parties. The plaintiff was running a cycle repairing shop on the ground floor but the other defendants used to obstruct in it and abuse him frequently and also used to deny ownership of the plaintiff. Therefore, on 28.2.1999, the plaintiff served a notice through his counsel upon the defendants for getting the house partitioned and getting possession of his share. But the defendants did not respond to it and continue to obstruct the plaintiff, hence, the plaintiff filed a suit for partition and to get possession of his share to the extent of 1/2.

The defendants submitted their joint written statement cum counter claim denying the claim of the plaintiff stating that the suit property was purchased jointly by the defendant no. 1 and Babulal out of the earning of joint family. The purchase was a benami transaction in the name of plaintiff and respondent no. 2 Haresh and in sale deed, the name of purchaser Babulal was shown as guardian being eldest member of the family. The construction was also done out of the earnings of the joint family. The plaintiff and respondent no. 2 were minor at the time of construction having no source of independent income. It was denied that the defendants have obstructed the plaintiff in using the toilet and bathroom and have intention to dispossess the plaintiff of the disputed house and the plaintiff is still running shop on the ground floor and residing in a room of second floor. In the counter claim, the defendants have averred that the suit property is a joint family property in which, respondent/defendant no. 1 was residing as a tenant before the purchase. The transaction was a benami and the suit property is a joint family property and permanent injunction against the plaintiff not to interfere in the possession of the defendants was prayed in the counter claim. With the aforesaid submissions, it was prayed that the suit filed by the plaintiff be dismissed.

The learned trial Court after framing as many as nine issues and after recording evidence has decreed the suit partly holding that the disputed house bearing House No. 1197 Halka No. 30 be partitioned and the parties are entitled to the possession to the extent of 1/5th share each in it.

The following questions arise for consideration in this appeal:

(i) Whether, the plaintiff has title to 1/2 share in the disputed property on the basis of sale deed dated 5.12.1977 Ex-P/1?

(ii) Whether the said property was purchased in the name of plaintiff and his younger brother Haresh from the earnings of joint Hindu family property?

(iii) Whether the findings of the learned trial Court are based on proper reasonings?

Learned counsel for the appellant submits that the findings of the learned trial Court are not based on proper reasonings as the disputed house was purchased in the name of plaintiff and his brother Haresh Jain by their uncle Babulal and so the plaintiff is the owner of 1/2 share of the disputed house. In spite of the fact that the learned trial Court has erred in holding that the house was purchased with the earnings of joint Hindu family property. The learned counsel further submits that Babulal was not the member of joint Hindu Family of his brother Shivcharanlal. He was living separately as well as earning also and he purchased the said house with his own income, therefore, the plaintiffs father Shivcharanlal and his other brothers have no right or title in the disputed house. The learned counsel further argues that the impugned judgment and decree deserves to be set aside and the plaintiff be declared owner of 1/2 share of the disputed property.

Combating the submissions made on behalf of the appellant, the learned counsel for the respondents submits that Babulal and Shivcharanlal were real brother. Babulal was unmarried and so he had been living jointly with his younger brother Shivcharanlal and his family to the end of his life. Both brothers were member of joint Hindu family and the disputed house was purchased from the income of joint Hindu family in the name of plaintiff-Ramnaresh Jain and younger son Haresh Jain who were minor at that time. The plaintiff-Ramnaresh has no source of income thus the house was constructed by the defendant No. 1-Shivcharanlal. The transaction of purchasing in the name of plaintiff is benami transaction, on the basis of which, the plaintiff Ramnaresh does not acquire the ownership of 1/2 share in the disputed house. He has 1/5th share in the property as being member of the joint Hindu family. The learned counsel further submits that the findings of the trial Court are based on proper reasonings as per recorded evidence and he relied on the following judgments in support of his submissions:-

Girindra Nath Mukherjee and Others Vs. Soumen Mukherjee and Others,

Prakash Chand Sharma and Others Vs. Narendra Nath Sharma,

Madan Lal Vs. Ram Prasad (deceased by L.Rs.),

Heard the arguments of both the parties and perused the record.

Indisputably, the disputed house was purchased on 6.12.1977 vide registered sale deed Ex-P/1 in the name of plaintiff-Ramnaresh Jain age 12 years and Haresh Kumar, defendant No. 2 (younger brother of plaintiff) and name of Babulal was mentioned as guardian of both the minors. The house was purchased for consideration of Rs. 7,800/-. The plaintiff has tried to say that the property was purchased by Babulal out of his own income and he was not member of joint Hindu family of his brother-Shivcharanlal who was father of plaintiff and defendant No. 2 but the plaintiff stand does not appear to be correct as the plaintiff has not pleaded in the plaint that both brother Babulal and Shivcharanlal had been living separately before execution of the sale deed. Without pleading this, the plaintiffs evidence cannot be looked into as the plaintiff has built up a new case in his statement in para 11 and 12 that Babulal used to reside separately from his brother Shivcharanlal. The plaintiffs statement has not been corroborated by any documentary evidence showing that the Babulal lived separately from his younger brother-Shivcharanlal. The plaintiff has not produced any document, any bank account, ration card, voter list or any other document to show that the Babulal was not member of joint Hindu family of Shivcharanlal and was living separately whereas in para 14 he has stated that the ration card of Babulal and Shivcharanlal were separate but he has not produced the same. The plaintiff has admitted in para 11 that Babulal and Shivcharanlal lived together. Similarly in para 17 he has deposed as under:-

The witness has further admitted in para 22 as under:-

Rebutting the plaintiff statement his father Shivcharanlal (DW. 1) deposing in his statement has stated that Babulal was his elder brother and he was unmarried. He and his brother Babulal lived together jointly. They were member of joint Hindu family. He never lived separately from the joint family. The witness has further stated that the disputed house was purchased by him from the earnings of joint Hindu family property and the name of Babulal being elder member of family was got recorded in the sale deed as guardian of the plaintiff and defendant No. 2. The witness has further deposed that the plaintiff-Ramnaresh being minor had no source of income to purchase or build the house. After purchasing the said property the house was built by him. Before purchasing the house he was engaged as tenant in a shop of the disputed house for repairing of cycle. Presently plaintiff-Ramnaresh is engaged in the said business. The witness was cross-examined on behalf of the plaintiff. Nothing has been brought out on record to discredit him. The statement of Ashok Kumar (DW/2) and Haresh (DW. 3) corroborate the Shivcharanlal''s statement in toto.

The plaintiff has deposed in para 23 that perhaps the house was constructed in the year 1982-83 when the house was purchased the plaintiff was 12 years old in the year 1977 as per sale deed Ex-P/1. According to this, his age was between 18 to 20 when the disputed house was constructed. Though he has tried to say in his statement that when the house was built by him he used to work but he has not produced any document to show his personal income and he had any money for contributing to the construction of the disputed house. Moreover, no permission for construction was sought by him alone from Municipal Nagar Nigam. In para 13 of the plaintiffs statement, it has come on record that when the disputed house was purchased at that time only he and his younger brother Haresh were born and other brothers were not born. On this basis, it is inferred that the property in the name of plaintiff and his younger brother was purchased by their father Shivcharanlal from the income of joint Hindu family property and the name of plaintiff and Haresh were got recorded as benami transaction and name of Babulal was got recorded as guardian being elder member of the family. It has come on record in para 23, 24 of the plaintiff Ramnaresh Jain''s statement and in para 6 and 7 of the plaintiffs witness Surendra Nath Gupta''s (PW/3) statement that after purchasing the disputed house Shivcharanlal and his family members have been residing continuously in the said house which indicates that the disputed house is being used as the property of joint Hindu family.

The learned counsel for the respondents placing reliance on the judgment rendered in Girindra Nath Mukherjee and Others Vs. Soumen Mukherjee and Others, has submitted that if a property is purchased in the name of minor by his father and the minor has no own source of income to pay consideration for the sale, the property could be presumed to be acquired by father for his own benefit and transaction would be deemed Benami. In the instant case admittedly, when the disputed house was purchased, the plaintiff was minor and had no source of income. The consideration was paid by his father and his elder brother Babulal (uncle of the plaintiff) from the income of joint Hindu family. The name of plaintiff mentioned in the sale deed is completely Benami and so he cannot acquire the title to 1/2 share in the disputed house. The plaintiff being the member of the joint Hindu family is entitled to get only 1/5th share in the property. Therefore, it is concluded that the findings of the lower Court are flawless and there is no point required to interfere in the impugned judgment and decree. Thus, affirming the impugned judgment and decree the appeal being meritless is, hereby, dismissed.

The cost of the appeal shall be borne by the appellant to the respondents.

Decree be drawn up accordingly.