Sohan Lal vs Nathmal and Another

M.C. Jain, J.—This appeal is directed against the judgment and decree passed by the District Judge Banswara dated 24th March, 1976 whereby the plaintiff-respondent Nathmal''s suit under Order 21, Rule 63 C.P.C was decreed. The defendant appellant had obtained a decree against the defendant 2 Naginlal S/o Nathmal. The plaintiff decree-holder Shri Sohan Lal in execution of the decree got a house attached in respect of which an objection petition was filed under Order 21, Rule 58 C.P.C. by the object or Nathmal but the same was dismissed. Hence he filed the suit under Order 21, Rule 63 C.P.C. with the allegations that the site over which the house was constructed by the plaintiff, was purchased by his grand father Keshvaji vide Patta No. 40 of 1911 Niti 10 Samvat year 1967. Out of that land, land measuring 8 feet was given to Jotkaran S/o Keshvaji and over the rest of the land the plaintiff constructed the house in the year 1941. His son Naginlal never remained in possession of the house. The house was constructed by the plaintiff by his own earnings and on the door of the house the letters N.P.K. are engraved Prior to the construction of the house, there was a Kacha Jhopri during the time of his father which was demolished and the house-was constructed by him. The half eastern portion of the house was got attached by the decree-holder defendant 1. The house in question is not liable to be sold in execution of the decree obtained by defendant 1 against defendant 2. It was also alleged in the plaint that the plaintiffs father Pannalalji was Tehsildar Kushalgarh and his father died when he was only 1 1/2 years old. The plaitniffs uncle Shri Manalal used to live in his separate house. His parents left sufficient property at the time of their death. The plaintiff remained in the care of his uncle who shifted to the plaintiffs house and his uncle gave away his own house to his other brother. The plaintiff therefore prayed that it may be declared that the house in question is the property of the plaintiff and is not liable to be sold in execution of the decree and the house property be released from attachment. The defendant 1 submitted his written statement and denied the allegations of the plaint. It was alleged that the property belongs to the judgment-debtor and the same is in his possession. The half portion of the property was the share of Manalal. Manalal remained in that particular portion till his lifetime and after his death his widow Champabai lived in that portion. That portion was bequeathed by Champabai in favour of Naginlal defendant 2 and after the death of Champabai Naginlal became the owner of that property. No written statement was filed by defendant 2.

On the pleadings of the parties the fprettal the defendant 5 examined himself as D.W. 1. The learned District Judge decided issues 1 to 4 in favour of the plaintiff and consequently decreed the plaintiffs suit.

3A. Dissatisfied with the judgment and decree the present appeal has been filed by Shri Sohanlal decree holder.

I have heard Shri P.C. Mathur, learned counsel for the appellant and Shri S. R. Bhandari learned counsel for the plaintiff respondent.

Mr. P.C. Mathur, learned counsel for the appellant first of all submitted that the learned District Judge erred in holding that the attached house property belongs to the plaintiff. He pointed out that the plaintiff has come forward with the case that his parents left sufficient property so it should be taken that with the nucleus of the ancestral property the plaintiff started his business and made earnings and with those earnings the house was constructed by the plaintiff. There already existed a Pakka House on the site as is evident from the statement of plaintiffs Munim Shri Kodarlal P.W. 2. Whether any nuclues was available to the plaintiff and with that nucleus business was run and out of the business income, house was constructed are all questions of fact and so from the evidence on record, it has to be seen as to whether the house was constructed by the plaintiff with the nucleus of the ancestral property. I have been carried through the evidence adduced by the plaintiff. After perusal of the statements of the witnesses produced by the plaintiff, I am of the opinion that it is not established that the house was constructed with the nucleus. The statement of Nathmal is categorical which is supported by the witnesses Chiranjilal P.W. 3 and P.W. 4 Acharatlal. These witnesses have clearly stated that the house was constructed by the plaintiff Nathmal with his own earnings. From the statements of Nathmal P.W. l and P.W. 4 Acharatlal, it would appear that there was a Kacha house and that Kacha house was demolished by the plaintiff in the year 1949 and the present house was constructed by him, so, there is overwhelming convincing and satisfactory evidence on record which establishes that the plaintiff Nathmal constructed the house by his own earnings having no nucleus. But it is the plaintiff''s case himself that the house was constructed on the site left by the plaintiffs grand-father Shri Keshavji, out of which 8 feet land was given over to the plaintiff''s father''s brother Jotkaran. This cannot be denied that defendant 2 Naginlal being the natural son of the plaintiff, became a coparcener with the plaintiff and so he had the share in the ancestral land purchased by Shri Keshavji the great grandfather of the defendant 2. The question therefore arises as to whether the whole house including the land over which the house stands can be held to be the exclusive self-acquired property of the plaintiff. The answer to this question is in the negative. The plaintiff can only claim ownership in the superstructure and ownership of half of the land, the remaining half share is of defendant 2. A similar question came up for consideration before the Madras High Court in A.L.P.R. Periakaruppan Chetti Vs. R.M.P.R. Arunachalam Chetti and Another, . In that case the decree-holder got the house property attached. The plaintiff claimed property to be his own self-acquisition. The judgment-debtor was adopted son of the plaintiff but the adoption took place after construction of the house by the plaintiff but it was an admitted case of the plaintiff that the house was constructed by him on the ancestral site. Kumaraswami Sastri J. and Reilly J. in their separate but concurrent opinions found that the plaintiff can only claim ownership of the super-structure along with his half share in the ancestral site. The remaining half share would be of the judgment-debtor. He is the adopted son. It was considered that the only ground on which the judgment-debtor second defendant can acquire any interests in the house are that of plaintiff, though he built the house with his own funds, made it joint family property because he built it on the ancestral site and so mixed up his self-acquisition with the joint family property by building a house on the site, and (2) he intended it to become joint family property to enure for the benefit of coparceners who may come into existence in future. It may be stated that there is no such evidence on record to establish either of the two grounds it was observed by Kumaraswami Sastri J. in that case that a person who by his exertions makes considerable acquisitions presumably wants to keep his acquisitions to himself. It would be a violent presumption to draw that a person who builds with his acquisition a house worth Rs. 30,0007- or 40,0007- on a site worth a few rupees intended to impress on it the character of joint family property especially when at the time of building he had no son natural or adopted or any coparceners. It was observed .as under : --

As observed by Mayne, the question whether a person has by his acts made property which was originally his self acquisition joint property is entirely one of fact to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection. Mayne''s Hindu Law, para 278, page 350.

It was stated by Shri Sastri J. that "I do not think that by building with self-acquired funds on the ancestral site worth a few rupees a superstructure costing several thousands the house became joint family property." It was further observed as under : --

"When a person builds with his self-acquisitions on land which is ancestral land in which a person subsequently gets an interest by birth, and when it cannot be said that the builder, built with knowledge of another person''s rights in the land and without his consent or against his will, the proper rule on partition is to allot the building and site to the person who built the superstructure, and taking into consideration the value of the site to give the share of its value or equivalent joint property to the other coparcener. I can find no decisions which compel me to hold that the coparcener claiming a share is entitled under such circumstances to the value of the building also or to require its demolition."

In Vithoba Bava v. Hariba Bava, 6 B.H.C.A.C. 54 it was held that where a member of an undivided family built at his own expenses a house on ground belonging to the joint family, the other coparceners were only entitled to a share equal to the value of his share in the site. It was therefore held in that case that the only right of the second defendant is to get a half share in the land The first defendant an attaching creditor, will only be entitled to attach and sell the right, title and interest of the second defendant in the land on which superstructure stands, and the decree of the lower court was modified accordingly.

In the present case as well in view of the admitted case of the plaintiff the defendant 2 acquired right in the ancestral land and being a coparcener had half share in it. The remaining half would remain with the plaintiff and the plaintiff can claim sole ownership of the superstructure over the entire land The decree-holder therefore can only proceed against the judgment-debtor in respect of the half share of the ancestral land and the decree-holder cannot proceed against the superstructure and against the remaining half share of the land which vests in the plaintiff. In view of this position the decree passed by the trial court needs modification.

Accordingly this appeal is partly allowed. The decree of the trial court is modified in the manner that the superstructure and the half share of the land belonging to the plaintiff are not liable to attachment and the sale in the execution of the decree by defendant 1. Therefore the whole of the superstructure and half share of the land shall stand released from attachment. The decree-holder can proceed only against the remaining half share of the judgment-debtor in the land. In the circumstances of the case, the parties shall bear their own costs of this appeal.