Shyam Laland Others vs Assistant Director of Consolidation, Gonda

Devi Prasad Singh, J.

Heard learned counsel for the parties.

The question involved in the present writ petition relates to joint Hindu family property. When a property should be treated as joint Hindu family property and when a member of joint family may claim a property as self earned property has been called for adjudication in the present writ petition.

The controversy relates to Khata No.200 situated in village Lethana, Pargana Nawabganj, tahsil Tarabganj, district Gonda. The basic year entry stood recorded in the name of late Sri Ram Lal who has been substituted by his legal heirs Sri Ram Murat, Shankarand Harilal being sons of late Sri Ram Lai. After initiation of consolidation operation parties had filed objection under Section 9 of the CH Act. Before the Consolidation Officer it was pleaded by the petitioner that land in question was granted on Patta dated 30.5.1951 to the petitioners'' father late Sri Sarju by the Zamindar of Payagpur estate. After execution of patta, it was duly verified. After execution of patta though the name of Zamindar continued in khatauni but in khasra it appears that name of Sri Sarju was recorded in possessory column. It has been admitted that in 1363 F, 1364 F and in certain other years in the khasra the name of Sri Sarju was recorded to be in possession of land in question. Respondent Ram Lal had claimed exclusive right over the khata in question on the ground that it is his self earned property It appears that before the Consolidation Officer the wife of late Sri Sarju i.e. mother of petitioners visavis private respondent Ram Lal appeared and made statement that the land in question was belonging to her husband late Sri Sarju who got the patta from the Zamindar of Payagpur estate It was also pleaded by the petitioners before the Consolidation Officer that the land in question was belonging to petitioners joint Hindu family acquired by their father late Sri Sarju. The Consolidation Officer while deciding the controversy by judgment and order dated 20.3.1975 had recorded a finding that the land in question was belonging to joint Hindu family and the property was acquired by late Sri Sarju hence all sons of late Sarju will have got equal share over the land in question. Accordingly the name of petitioners'' visavis respondent Ram Lal was recorded as cotenant over the plot in question.

Feeling aggrieved with the order passed by the Consolidation Officer an appeal was filed under subsection 1 of Section 11 of the Consolidation of Holdings Act by the respondent Ram Lai. The Settlement Officer of Consolidation though had not recorded any finding that patta was false or fake or it was not executed by the Zamindar of the Payagpur estate but proceeded to held that land is not identifiable. It has been held by the appellate authority that there is no evidence on record which may indicate that portion of land, which was given on patta to late Sri Sarju, is the same, which is under dispute between the parties, though it has been held that for few years lagan was paid by late Sri Sarju. But to falsify the right on account of payment of lagan receipts, it has been held that the lagan receipts do not disclose that it was paid for the land in question. It has been further held by the appellate authority that late Sri Sarju died after 12 or 13 years and at the time of his death the provisions contained in U.P.Z.A. & L.R. Act was applicable. Accordingly, after the death of late Sri Sarju the name of respondent Ram Lal was recorded. Though, it has been admitted that provisions contained in Section 171 of the U.P.Z.A. & L.R. Act is very well applicable but it has been recorded that since there is no document on record which may indicate that name of late Sri Sarju was recorded ever in the revenue records no right and title can be claimed by the petitioners. It has been further held by the appellate authority that after the death of late Sri Sarju the name of respondent Ram Lal was recorded being heir and successor in the mutation proceedings. The basic year entry shows that the name of late Sri Ram Lal has been recorded being inherited property. The presumption available to the petitioners on account of entry made in the basic year has been denied on the ground that burden was on the petitioners to show that the respondent Ram Lal had not acquired the property by his own source. With these findings the appeal was allowed and the appellate authority had held that the land in question belongs to respondent Ram Lal and it was his own earned property.

Feeling aggrieved with the order passed by the appellate authority petitioners preferred a revision under Section 48 of the Consolidation of Holdings Act. The revisional authority had retreated the order passed by the appellate authority and further proceeded to held that since in the khatauni the name of Mahadev was recorded as sitting tenant since 1360 Fasli and thereafter the name of respondent Ram Lal was recorded, it shall be presumed that the land in question was his own earned property. It has been further held by the revisional authority that late Sri Sarju was having no concerned with the present land.

Though, the two Courts below i.e. appellate as well as revisional authority had recorded a finding of fact that the respondent Ram Lal had acquired the property on his own from the Zamindar of Payagpur estate but evidence on record does not disclose that what was the mode of acquisition of the property by Sri Ram Lal from the Zamindar. There is no material on record which may indicate that Ram Lal was having some independent source of income to generate his own resources and the source of livelihood to purchase of land in question. There is also no evidence which may indicate that land in question was given by Zamindar to Ram Lal by patta, lease or by any other lawful mode of transfer. It has not been disputed that petitioners as well as respondent No.3 were the members of joint Hindu family. Late Sarju was having five sons namely (1) Ram Lal (2) Shyam Lal (3) Brij Raj (4) Mohan and (5) Rajaram. Sri Ram Lal was the eldest brother among five brothers. At the revisional stage a defence was taken that after two years from the death of late Sri Sarju a family separation took place and thereafter the Ram Lal acquired the property in question. However, the evidence on record shows that the land in question was in possession of the family during the life time of late Sri Sarju. Accordingly, it cannot be held that land in question was acquired by respondent Ram Lal after the death of late Sri Sarju. Once the evidence points out that land was within the possession of family during the lifetime of late Sri Sarju and there was a joint Hindu family then burden was on the shoulder of the respondent No.3 to establish that he had acquired the property from his own source of income. This proposition of law got support from a case reported in 1995 (3) AWC 1604, Babu Nandan Upadhavavv. Deputy

Director of Consolidation and others. This Court while relying upon the judgment of Apex Court held that when the nucleus of the joint Hindu family proves then burden shall be on the person who claim that he or she has earned the property from his own sources. Relevant portion from the judgment of Babu Nandan Upadhvav (supra) is reproduced as under:

"Reliance has been placed on the ruling of the Hon''ble Supreme Court in AIR 1964 SC 1076. It is very clear from that ruling that when the nucleus is proved of joint status and joint interest, the burden is upon the person who says that he exclusively earned the property. There is not an iota of evidence on the record to prove as to what was the financial status of the petitioner or if at all, he had any financial status in presence of his father specially when the other two brothers are minors. Therefore, it is difficult to believe that with such a nucleus, with joint family the father would have excluded his other two sons and made a settlement in favour of the petitioner only. The principal intention appears to be to grab the property somehow or the other, which might have gone outside the family. Therefore, a colour had to be given of settlement in favour of the petitioner who alone was major at that time.�

In one another case reported in 1997 (2) SCC 485, Sher Singh and others v. Gamdoor Singh, their Lordships of Apex Court held that once the existence of joint Hindu family is not in dispute necessarily the property held by a member of joint Hindu family shall presume the character of coparcenary property. Relevant portion from the judgment of Sher Singh (supra) is reproduced as under:

"Once the existence of joint family was not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless any one of the coparceners pleads, by separate pleadings, and proves that some of the properties or all the properties are his selfacquired properties and could not be blended in the coparcenary property."

In one another case reported in 2003 (10) SCC 310, D.S. Lakshmaiah and anotherv. L. Balasubramanyam and another, their Lordships while retreating the long settled principle held that once nucleus of joint Hindu family is proved then onus shall be shifted on the person who claims a property to be self acquired. Relevant portion from the judgment of D.S. Lakshmaiah (supra) is reproduced as under:

"18. The legal principle, therefore, is that there is no presumption of a property being joing 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 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."

Similar proposition of law also finds place in another case reported in 2002 (4) SCC 743, M.L. Subbarava Settv (Dead'') by LRs. and others v. M.L Naqappa Setty (Dead) by L.Rs. and others (Para23).

In view of settled proposition of law the burden was on respondent Ram Lal to establish that he had acquired the land in question from his own source of income or the Zamindar of Payagpur estate has given the land on lease or patta. One other feature of the present case is that it has not been disputed by the parties that the land in question was belonging to Payagpur estate. In case, it has been admitted that land in question was initially belonging to Payagpur estate then there must be some evidence to indicate that by some valid mode of transfer the land was acquired by Sri Ram Lai. There is nothing on record which may indicate that the Payagpur estate had transferred the land in question in favour of Sri Ram Lal in accordance to law. Mere entry without any foundation containing name of Sri Ram Lal cannot be sufficed to declare Ram Lal to be exclusive owner of the land in question. It must be established that he had acquired the land from the Zamindar of Payagpur estate in accordance to law There is also no evidence on record which may indicate that the sitting tenant of Payagpur estate had given the land to Sri Ram Lai. In view of these admitted facts the execution of patta dated 30.5.1951 in faovur of late Sri Sarju and consequential acquisition of land by him does not suffer from any doubt. Being the eldest son of late Sri Sarju it was natural that after the death of Sri Sarju in revenue records the name of Sri Ram Lal was recorded as "Karta" of the family.

Hon''ble Supreme Court in a case reported in 2004(11) SCC 320. P.S, Sairam and another v. P.S. Rama Rao Pissey and others, held that even if a property stands in the name of a person belonging to joint Hindu family there shall be presumption that the same belongs to joint Hindu family subject to condition that the joint family had sufficient nucleus at the time of acquisition. Relevant portion from the judgment of P.S. Sairam (supra) is reproduced asunder:

"It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business."

Accordingly, even if a basic year entry in the khatauni was recorded in the name of the private respondent, it shall deem to be joint Hindu family property, since at relevant time opposite party No.3 was the member of joint Hindu family and no material has been placed on record to prove that he had acquired the land from his own source of income.

There is one more reason which may indicate that property belongs to joint Hindu family and it was acquired by late Sri Sarju. After the death of late Sri Sarju while recording the name of Sri Ram Lal in revenue records it has been indicated that he had inherited the property. In case, Sri Ram Lal had acquired the property from his own resources then such remark in revenue record was not called for. In case the land in question would have been the self acquired property of Sri Ram Lal then during the lifetime of Sri Sarju his name would have been entered in the revenue records. This aspect of the matter also indicates that the land in question is a joint Hindu family property and was belonging to Sri Sarju and after his death his all five sons have got right.

In view of above it is amply clear that the land in question is a joint Hindu property belonging to late Sri Sarju. After his death all the five brothers will have right to retain the land as contenant. Statement given by mother of the petitioners is also a substantial evidence which indicates that land was acquired by late Sri Sarju. The statement of mother should have been given due weight by the appellate as well as revisional authority which seems to have been not done.

Both the appellate as well as regional Court have failed to exercise their jurisdiction vested in them in view of settled proposition of law as discussed hereinabove. Accordingly, impugned judgment and order suffers from substantial Illegality and calls for interference by this Court under extraordinary remedy. Writ petition deserves to be allowed.

In view of above, writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned judgment and/orders dated 26.9.1975 and 26.11 1980 passed by opposite party No.1 and 2, contained as Annexure No.2 and 3 to the writ petition respectively, with consequential benefits. The judgment and order of Consolidation Officer dated 20.3.1975 as contained in Annexure No.1 to the writ petition is restored. The revenue authorities are directed to make entry in revenue records accordingly. Writ petition is allowed accordingly. No order as to costs.

(Petition allowed)