Santoshi Bai vs Khorbahara (Dead) Through And Ors

The substantial question of law involved, formulated and to be answered in this plaintiff's second appeal is as under:­

"Whether the finding recorded by both the Courts below that the suit land in area 11.86 acres and 14.72 acres situate at village Bardi is the self acquired property of the defendants is perverse ?"

[For the sake of convenience, parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

The plaintiff is daughter of Shyamal and grand­ daughter of Khorbahra, whereas defendant No.1 is Khorbahara, Son of Bhikham, defendants No.2 to 4 are sons of defendant No.1­Khorbahra and defendant No.5 is wife of Khorbahra. The plaintiff filed a suit that her father Shyamlal has already died and the suit property shown in Schedule 'A' of the plaint i.e. total 32.29 acres is the property of Khorbahra, out of which 17.57 acres of land was inherited by defendant No.1 by his father Bhikham and from earnings of said land defendant No.1 purchased 14.51 acres of land in his name and 11.86 acres of land in the names of his sons along with his name and on 3.8.1998 defendant No.1 partitioned the suit land without including the plaintiff, which necessitated the filing of the suit for declaration of title and partition.

Defendants No.1 to 5 filed their joint written statement and denied the averments made in the plaint stating inter­alia that only 17.57 acres of land is ancestral property, whereas defendant No.1 has purchased 14.51 acres of land from the business which he as doing and 11.86 acres of land was purchased by defendant No.2 to 4 from the money received from maternal uncle. Only 17.57 acres of land is ancestral property and out of which, 1.09 acres of land is already kept for the plaintiff, as such, the suit deserves to be dismissed.

The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 7.5.2003, dismissed the suit holding that only 17.57 acres of land is ancestral property and the plaintiff is entitled for 1/6th share of the said land, against which, the plaintiff preferred first appeal under Section 96 of the CPC before the first appellate Court. The said Court dismissed the appeal affirming the judgment and decree of the trial Court. Questioning the judgment and decree of the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellant/plaintiff, in which substantial question of law has been formulated, which has been set out in the opening paragraph of this judgment.

Mr.Rajeev Shrivastava, learned counsel for the appellant/plaintiff, would submit that the trial Court has wrongly shifted the burden of proof on the plaintiff and burden lies on defendant NO.1 to prove that all the suit property is not ancestral property as per presumption about the jointness of Hindu family. He relied upon the judgments of the Supreme Court in the matter of Gopal Krishnaji Ketkar v. Mohamed Haji Latif & others AIR 1968 SC 1413, Adiveppa & Others v. Bhimappa & Anr. (2017) 9 SCC 586. and Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386, as such, the judgment and decree of both the Courts below holding that 14.51 & 11.86 acres of land held by defendant No.1 to 5 are their self­acquired properties and are not available for partition is a finding perverse and contrary to record and therefore, liable to be set aside.

On the other hand, Mr.H.S.Patel, learned counsel for the respondents NO.1 to 4/defendants No.1 to 4, would submit that finding recorded by the trial Court that only 17.57 acres of land is ancestral property and 14.51 & 11.86 acres of land held by defendants No.1 to 5 is the land purchased by them from their own earnings is finding of fact based on evidence available on record, which is neither perverse nor contrary to record. He relied upon the judgment of the Supreme Court in the matter of Rangammal v. Kuppuswami and another (2011) 12 SCC 220.

I have heard learned counsel for the parties and considered their rival submissions made herein­above and also went through the records with utmost circumspection.

In order to consider the plea raised at the Bar, it would be appropriate to notice pertinent decisions in this regard.

The Supreme Court in the matter of Srinivas Krishnarao Kango v. Narayan Devji Kango and others AIR 1954 SC 379 has held that 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. It was observed as under:­

"8....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 self­acquisition to establish affirmatively that the property was acquired without the aid of the joint family property "

In the matter of Mudi Gowda Gowdappa Sankh (supra) the Supreme Court has held that there is no presumption that merely because the family is joint so the property is also joint. So the person alleging the property to be coparcenary property must prove it. But if it is shown that there was a nucleus of the joint family property then any acquisition by its aid by a member is joint property. It was observed as under:­

"6..... 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 "

In the matter of Mudi Gowda Gowdappa Sankh (supra), the Supreme Court relied upon the ratio of Privy Council judgment in Randhi Appalaswami v. Randhi Suryanarayanamurti & Others ILR 1948 Mad 440 (PC) and held as under:

"...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 self­acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."

Likewise, in the matter of D.S. Lakshmaiah and another v. L. Balasubramanyam and another (2003) 10 SCC 310 the Supreme Court relied upon its earlier decisions in this regard and held as under:­

"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self­acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."

The Supreme Court in the matter of Rangammal (supra) has held that in a suit for partition only joint family property has to be included by holding as under:­

"45. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone else's property meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property did not belong to the plaintiff's joint family in regard to which decree for partition is sought."

The Supreme Court in the matter of Gopal Krishnaji Ketkar (supra) has held that Court ought to draw an adverse inference against a party, if a party in possession of best evidence which would throw light on the issue in controversy withholding it.

Reverting to the facts of the present case in the light of the principles of law laid down in the above­stated judgments (supra) noticed hereinabove, it is quite vivid that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. It was burden on the part of the plaintiff to prove that the property situated at village Bardi area 11.86 acres and 14.72 acres held by the defendants is also a joint family property of them and the plaintiff was required to prove that there was adequate nucleus with which the joint family proerty has been acquired.

In the plaint filed by the plaintiff, the pleading about nucleus by which the suit property situated at village Bardi was acquired is absolutely silent. Para­3 of the plaint is reproduced herein:­

"3. यह कि, ग्राम बारदी प0ह0नं0 13 रा0नि0मं0 दशरंगपुर, तह0 कवर्धा जिला-कवर्धा में स्थित 17.57 एकड़ भूमि को प्रतिवादी क्रं01 ने अपने पिता से उत्तराधिकार मे प्राप्त किया तथा इस 17.57 एकड़ भूमि के प्राप्त आय से कुल ख.नं. 4 रकबा 11.86 एकड़ भूमि ग्राम बारदी प0ह0नं0 13 मे खरीद कर पुत्रो प्रति.क्र02 से 4 के नाम रखा इस प्रकार प्रतिवादी क्र0 1 के पास पैतृक संपति 32.29 एकड़ तथा पैतृक संपति की प्राप्त आय से खरीदी गई स्वय के नाम पर एवं पुत्रों के नाम पर खरीद गये 11.86 कुल 44.15 एकड़ कृशि है जिसका विस्तृत विवरण वाद पत्र के अंत मे संलग्न सूची श्अश् मे बताया गया है। जिसे वाद का अंग माना जाय।"

A bare perusal of the aforesaid paragraph would show that the plaintiff only pleaded that defendant No.1 obtained only 17.57 acres of land on succession from his father and out of income of that land, he purchased the remaining property in the names of defendants No.1 to 5. There is no plea at all that joint family had adequate nucleus for purchase of remaining land i.e. 11.86 + 14.72 acres by defendant No.1. That pleading is totally missing. The trial Court has clearly recorded a finding that the plaintiff has failed to plead and establish and bring any documentary evidence on record to show that the suit land shown in Schedule 'A' of the plaint is joint family property and only 17.57 acres was acquired by Bhikham (father of defendant No.1) as ancestral property and remaining 14.72 acres of land was obtained by defendant No.1­Khorbahra and other land i.e. 11.86 acres of land was acquired by defendants No.2 to 4 by sale deeds (Exs. D­1 to D­13), as such, finding recorded by two Courts below that the property namely 14.72 acres and 11.86 acres are self­acquired property of defendants No.1 to 4 is finding of fact based on evidence available on record, which is neither perverse nor contrary to record. The substantial question of law is answered in favour of the defendants and against the plaintiff.

Accordingly, the second appeal being devoid of merit is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

A decree be drawn up accordingly.