Shyamlal and Others vs Babulal and Others

Abhay M. Naik, J.

Plaintiffs/Respondent Nos. 1 and 2 instituted a suit for declaration, partition and perpetual injunction mainly with the allegations that the private parties to the suit were legal heirs of Munnalal and Gyarasibai. After the death of Munnalal, Defendant/Appellant No. 1 being the eldest, became manager of the Joint Hindu Family, which owns agricultural land in area 56 Bigha and two Biswa at Vidisha, which was recorded in the name of Defendant/Appellant No. 1. Out of this land, an area of 28 Bigha 1 Biswa was sold in the year 1963. Remaining land described in Para 3 of the plaint, is the subject-matter of this appeal. It was alleged that a division of the capital of the business of Joint Hindu Family took place on 25-10-1973 between the Plaintiffs, Defendant Nos. 1 and 2 and widow of Munnalal. On 12- 5-1977, residential houses belonging to the Hindu Joint Family were also divided. However, the suit land remained undivided because the parties used to share the crops of agricultural produce till the year 1987. In the year 1988, Defendant/Appellant No. 1 refused to provide agriculture share to the Plaintiffs. On enquiry, they came to know that the Defendant/Appellant No. 1 got the suit property partitioned between him and his children and got it recorded separately in separate shares in revenue records. Hence, the suit with the following reliefs:

(i) that, it may be declared that the Plaintiffs have 1/4th share each in the suit land;

(ii) that, the suit land may be partitioned and separate possession may be delivered to the Plaintiffs;

(iii) that, the Defendants may be restrained by issuing permanent injunction from interfering in to the land on allotment to the Plaintiffs by partition;

(iv) that, mesne profit at the rate of 10,000/- p.a. may be awarded.

Defendant Nos. 1, 2 and 4 to 7 submitted their written statement denying thereby the claim of the Plaintiffs. It was denied that the suit land was Joint Hindu Family property. On the contrary, it was averred that it was self acquired of the Defendant/Appellant No. 1. It was further stated that partition took place on 25-10-1973 and thereafter Plaintiffs and Defendant Nos. 1, 2 and 3 occupied their respective portions and started independent business. Alleged partition on 12-5-1977 in respect of the house property was denied in specific. Since the suit land was purchased by Defendant No. 1 by his self acquired money it was rightly partitioned between him and his sons.

Earlier, learned Trial Judge dismissed the suit vide impugned judgment and decree dated 21-7-1998. On appeal, the same was set aside vide impugned judgment and decree dated 12-8-1999 allowing further the suit of the Plaintiffs declaring that the Plaintiffs have 1/4th share each in the suit agricultural land and shall have right to obtain possession by partition through the Collector, Vidisha. Mesne profit at the rate of Rs. 2,000/- has also been ordered. Aggrieved by the aforesaid, present appeal is preferred which has been heard on the following substantial question of law in addition to I.A. Nos. 5360/01,5361/01 and I.A. No. 17173/08:

Whether the findings of the First Appellate Court are vitiated on the point of nucleus in absence of specific plea of partial partition of Joint Hindu Family ?

It is contended on behalf of the Appellant that the disputed agricultural land was purchased by the Appellant Defendant No. 1 in his own name vide registered sale deed 21-9-1985 (Exh. D-1). It is not proved to have been purchased by the funds of HUF. Moreover, a partition having once taken place in the year 1970, suit for further partition is not tenable and the same is liable to be dismissed. Learned Counsel for the Respondents on the other hand supported the impugned judgment and decree.

Learned Courts below after appreciating the evidence found that the father Munna Lal was engaged in business which was inherited by his children. Defendant/Appellant No. 1 being the eldest, started managing it. Land in question was purchased in the years 1957 and 1959. No other source of income could be established except the business inherited from the father. Although, the Defendant No. 1 has stated in his written statement that the suit land was his self acquired property, he failed to establish the said fact. On the contrary, in Para 2 of his statement, it was earlier stated that the suit land was purchased by money raised on account of sale of jewellery of Defendant No. 1''s wife. This was objected for want of pleadings and was not allowed to be recorded. Thereafter, Defendant/Appellant No. 1 in next para, i.e., Para 3 took another stand that it is was purchased by him by his own money. It is pertinent to note that the Defendant/Appellant No. 1 has, in his statement nowhere stated that he had raised sufficient money from any other source for the purchase of the disputed land. On the contrary, he had admitted in Para 14 of his statement that the shop left by his father was managed by him and his brother Mangaljeet, after the death of his father. He further admitted in the same para that he was manager of the Joint Hindu Family. Father of Defendant/Appellant No. 1 and Plaintiff namely Munna Lal died in the year 1942 as admitted in Para 13 of his statement by Defendant/Appellant No. 1. In Para 18, he further admitted that after the death of his father he along with his mother and brother remained joint up to the year 1957. Plaintiff/Respondent No. 1 opened shop in the year 1970 with the capital provided by Defendant/Appellant No. 1 as stated in Para 19. Thereafter, in the year 1977 a division took place which according to the Plaintiffs did not include the disputed land. This is stated to have been effected vide Exh. P-3. Copy of this document is on record as Exh. P/3-C, which reveals that a division of capital of the business took place vide Exh. P-3 or Exh. P/3-C. Thus, contention of the Plaintiffs gets strengthened that at the time of division vide Exh. P/3-C agricultural land was not partitioned but was kept joint.

Supreme Court in India in case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, has observed:

The case of the Appellants was that these lands were self-acquisition of Goudappa, but the Respondents contended that they were joint family properties. 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 presume 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.

Supreme Court of India in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and Others, , has observed as under:

The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the members of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.

It is again a settled law that the Plaintiff seeking partition of a particular property as joint family property is required to establish that there was a sufficient nucleus which could have been the source of acquisition. Whole of the money required for the purchase of the property in partition suit is not required to be proved to have actually come out from nucleus or that the nucleus was sufficient to have yielded all the necessary funds for acquiring the property in dispute. It is sufficient in law that there is proof about the nucleus which could have been the source of the acquisition. Once the existence of such a nucleus is proved obviously it is for the person asserting his self acquired property to prove affirmatively that he acquired it from his own self acquired funds. High Court of Allahabad in the case of Patram Singh v. Bahadur Singh AIR 1983 All. 348, has observed in Para 14:

Even apart from this principle of blending, the Defendant was the Karta of the family. The joint family did have property in the form of agricultural lands and an ancestral house which could very well have been the nucleus from which the money for purchasing the land or building the house in dispute could have come. It is not the law that the whole of the money required for the same must be proved to have actually come out from such nucleus, or that the nucleus was sufficient to have yielded all the necessary funds for acquiring the property in dispute. It is sufficient in law to find that there was a nucleus which could have been the source of the acquisition. It is not necessary to prove that the nucleus was in fact the source of the acquisition. Once the existence of such a nucleus is proved, it is for the person contending that the property is his self-acquired property to prove affirmatively that he acquired it from his own self- acquired funds. It is not sufficient for him to show or to suggest that it could have been acquired from his self acquisition. He must prove it positively as a fact that the source of the acquisition of the property in dispute was his self-acquired income or fund.

Thus, the Courts below have rightly found on the basis of correct appreciation of evidence on record that there was nucleus of Joint Hindu Family which could have yielded consideration for the purchase of land in question and that the Defendant/Appellant No. 1 was managing the business left by father of the parties, namely, Munna Lal and that the Defendant/Appellant No. 1 has failed to prove that he had purchased the land by his self earned money. Plaintiffs have clearly pleaded in Para 4 that on 25-10-1973 there took place a division of merely capital invested in the business of HUF and thereafter their took place a division of residential house on 12-5-1977. It is clearly averred in Para 4 of the plaint that the disputed land remained undivided up to the year 1987 and the parties used to share the crops. Defendant/Appellant No. 1 himself has admitted that the Plaintiffs and Defendants were maintained by the agricultural produce until they were separated. Thus, it cannot be said that the absence of partition in respect of disputed land was not pleaded. On the contrary, it is found to have been clearly pleaded that the disputed land was not partitioned and was left joint at earlier stages.

Thus, in the totality of facts and circumstances, the substantial question of law is decided against the Appellants, in favour of the Plaintiffs.

As regards, substantial question of law proposed by LA. Nos. 5360/01, 5361/01 and LA. No. 17173/08, it is observed that the substantial question of law proposed by first two applications are merely in the nature of arguments. As regards, I.A. No. 17173/08, it is observed that in the absence of factual foundation substantial question of law proposed by this application does not deserve consideration. Citation reported in G. Narayana Raju Vs. G. Chamaraju and Others, . deals with blending, whereas, in the case in hand it is found proved that the property in question was Joint Hindu Property. Accordingly, all the three IAs'' are hereby dismissed.

In the result, appeal is dismissed, however, with no order as to costs.