Sushila Dev And Ors vs Dinesh Prasad Gupta And Ors

Heard Mr. Prashant Pallav assisted by Ms. Monalisa Singh, learned counsel appearing for the appellants and Mr. Shankar Lal Agarwal, learned

counsel appearing for respondent no.1.

The appellants have preferred this First Appeal against the judgment and decree dated 31.05.2008 and 05.06.2008 respectively passed by the

learned Subordinate Judge No.I, Deoghar in Title (Partition) Suit No. 109 of 2006.

The appellants/plaintiffs have instituted Title (Partition) Suit No. 109 of 2006 for a decree of partition to the extent of 1/2 share in favour of the

appellants/plaintiffs in property described in Schedule-I and IIA of the plaint and also for a decree of partition in favour of appellant no.2/plaintiff no.2

to the extent of 1/2 share in the property described in Schedule-1A and 2 of the plaint. It has been further prayed for granting permanent injunction

against the respondents/defendants restraining them to collect the rent in respect of various shops situated at property described in Schedule-I of the

plaint. The appellants/plaintiffs have also prayed for the cost of the suit and any other relief or reliefs to which they would be deemed entitled.

Vide judgment dated 31.05.2008, learned Subordinate Judge No.I, Deoghar has partly decreed and partly dismissed the suit on contest without cost

and declared that only plaintiff no.2 has got half share in the property described in Schedule-I/A. It has been further declared that the plaintiffs have

got no share in the rest property described in Schedules of the plaint and accordingly preliminary decree was directed to be prepared which was

prepared on 05.06.2008.

It was the case of the appellants/plaintiffs before the court below that the parties are Hindu, governed by Mitakshra School of Hindu Law and

appellant no.1/plaintiff no.1 is the mother of appellant/plaintiff nos. 2,3 and all the respondents/defendants. Similarly, plaintiff nos. 2 and 3 and the

defendants are related as brothers and sisters. It was alleged that Kesho Prasad Gupta, the husband of plaintiff no.1 and father of plaintiff nos. 2 and

3 and the defendants acquired a piece of land and house at Mouza- Shayamganj within Town Plan plot no. 724 and 725 having an area of two Kattha,

6 ½ Dhoor through a registered sale deed bearing No. 621 dated 01.02.1970 in the name of his brother Bihari Lal Gupta and eldest son Dinesh

Prasad Gupta (respondent no.1/defendant no.1). Dinesh Prasad Gupta was aged about 5-6 years at the time of acquisition of property and there are

recitals in the deed that entire transaction was made through Kesho Prasad Gupta and an agreement for sale was executed by the vendor in favour of

Kesho Prasad Gupta on 14.12.1969. Thus, the deed itself witnesses that the purchase was made by Kesho Prasad Gupta in the name of eldest son

Dinesh Prasad Gupta as well as his brother Bihari Lal Gupta. It was further case of the appellants/plaintiffs that subsequently a deed was executed by

Bihari Lal Gupta on 03.06.1998 bearing registration No. 1658, wherein, it was admitted and acknowledged by Bihari Lal Gupta that entire

consideration amount was paid by late Kesho Prasad Gupta for the property purchased in the year 1970. Kesho Prasad Gupta died in the year 1986

leaving behind the appellants/plaintiffs and respondents/defendants as his only heirs and successors as well as his one more son namely Raj Kapoor

Gupta, who was the youngest son of the deceased Kesho Prasad Gupta, but right from the year 1998, he has become traceless and remains unheard

by any of the members of the family and relative of the parties and that is why he has not been impleaded as party in the suit. It was further case of

the appellants/plaintiffs that after the death of Kesho Prasad Gupta, the eldest son Dinesh Prasad Gupta started to act as Karta of the family and he

got the deed of transfer executed by Bihari Lal Gupta in the year 1998 in his name and the said transfer was for the benefit of the entire members of

the family i.e. all the heirs of Kesho Prasad Gupta and thus the whole property purchased by Kesho Prasad Gupta in the year 1970 and acquired by

Dinesh Prasad Gupta in the year 1998 equally devolved on all the heirs of late Kesho Prasad Gupta and the appellants/plaintiffs are entitled to a

legitimate share in that property. It was further case of the appellants/plaintiffs that as their family was engaged in business, they acquired a shop

room situated at S.B. Rai Road, Deoghar through registered sale deed bearing No. 3278 dated 26.09.2002 fully described in Schedule-IA of the plaint

in the year 2002, out of joint family nucleus and out of their personal savings and the property was meant for two brothers i.e. appellant no.2/plaintiff

no.2 and respondent no.1/defendant no.1. It was further case of the appellants/plaintiffs that respondent no.1/defendant no.1 being the Karta of the

family used to keep the account of sale proceeds with him to the tune of Rs. Six Lacs in cash at hand and in various bank accounts, in which, parties

are entitled to a share. It was alleged that the property described in Schedule-IA of the plaint is a shop room dealing in the readymade garments under

the name and style of M/s Sonika Garments, which is presently under the lock and key of both the parties and the assets are lying in the shop room

valued not less than Rs. Ten Lacs in which appellant no.2/plaintiff no.2 and respondent no.1/defendant no.1 have got equal share. It was further case

of the appellants/plaintiffs that respondent no.1/defendant no.1 has grown dishonesty and is not ready to give the share to the appellants/plaintiffs in

the suit property and he is also appropriating the rent being realised from the different tenants namely Arun Kumar Mundra and Rahul Kumar Bharti

in regard with property consisting four shops in which one is allegedly vacant. It was further case of the appellants/plaintiffs that there are other

ancestral properties of Kesho Prasad Gupta at village- Bakudih, P.S. Taljhari, Subdivision- Rajmahal, District- Sahebganj, but the same have not been

included in the suit, because firstly the properties situated beyond the jurisdiction of that trial court and secondly all co-sharers coming from the branch

of grand father of appellant no.2/plaintiff no.2 would have to be impleaded as party creating complicity of the proceedings. The appellants/plaintiffs felt

difficulty and hence they demanded partition, but the respondents/defendants particularly respondent no.1/defendant no.1 refused to partition the suit

property and, hence, the suit was instituted.

The respondents/defendants have appeared and contested the suit by filing written statements separately with a prayer to dismiss the suit.

Respondent no.1/ defendant no.1 has contested the suit by filing a written statement praying therein to dismiss the suit on the ground inter alia that the

suit, as framed, is not maintainable, hit by estoppel, waiver and acquiescence and is barred by law of limitation and is also bad for non-joinder and mis-

joinder of the parties and, therefore, the appellants/plaintiffs have no cause of action for the suit. It was pleaded that Bihari Lal Gupta and Dinesh

Prasad Gupta (defendant no.1) purchased the suit property described in Schedule-I of the plaint by virtue of sale deed No. 621 dated 01.02.1970 from

one Basanti Devi out of the money amounting Rs.5,551/- gifted to them by Sohadra Devi, the mother of Bihari Lal Gupta and the grandmother of

Dinesh Prasad Gupta, which was handed over to Kesho Prasad Gupta who was a business man running his small business at Deoghar and the same

was lying in deposit with him. It was also alleged that Kesho Prasad Gupta came to know about sale of property described in Schedule-I of the plaint

and other properties and he approached to the owner and negotiated the transaction for purchasing four sub-plots being No. 1678 of Deoghar Town

Plan plot No. 724, 725 with the gifted money and the same was done on behalf of Bihari Lal Gupta and Dinesh Prasad Gupta as he had no money to

purchase plot nos. 7 and 8, thereafter, the suit property described in Schedule-I of the plaint was purchased by defendant no.1 and Bihari Lal Gupta in

consideration amount of Rs.4,850/-which was paid from the gifted amount. After purchase defendant No.1 and his uncle Bihari Lal Gupta got their

name mutated in the Sarishta of State vide Mutation Case No.197/1972-73 and also in Deoghar Municipality. When defendant no.1 became capable

of constructing house from his own income, he got the building plan sanctioned in regard with existing house vide building plan No.34/1987-88, which

was sanctioned in his exclusive name and he constructed house. After acquisition of property in the year 1970 and after getting their names mutated,

defendant no.1 Dinesh Prasad Gupta and his uncle Bihari Lal Gupta mutually partitioned the suit property and western half of the suit property was

allotted to Dinesh Prasad Gupta, over which the building plan was allegedly sanctioned within the knowledge of the appellants/plaintiffs. It was further

case of defendant no.1 that he also acquired the half share of Bihari Lal Gupta from his own earning and savings by virtue of registered sale deed

No.1658 dated 3.6.1998 on payment of lawful consideration to Bihari Lal Gupta and he became the absolute owner of the whole suit property

described in Schedule-I of the plaint and after acquisition of the vacant land of the share of his uncle, defendant no.1 acquired the entire suit land by

amalgamating his western half with it. Thus, the allegation of the appellants/plaintiffs that Kesho Prasad Gupta purchased the suit property in the name

of Bihari Lal Gupta and Dinesh Prasad Gupta is false, fraudulent and imaginary. Had there been this situation, Kesho Prasad Gupta had every option

to purchase the property either in his name or in the name of his wife. If Kesho Prasad Gupta had purchased the half of suit land in the name of Bihari

Lal Gupta from his own fund then there was no occasion for Bihari Lal Gupta to demand a consideration money from defendant no.1 in regard with

eastern half of Schedule-I property. It was alleged that defendant no.1 was never the Karta of the family nor he was eldest among family members as

his mother was alive. It was alleged that the father of plaintiff Nos.2 and 3 and defendants had left no business or any property at Deoghar, there was

no question of his becoming Karta of the family. Kesho Prasad Gupta was suffering from different serious ailments and he has closed his business of

readymade garments during his life time in the year 1982 leaving no substantial property. Since the residue amount of the family was gifted by Kesho

Prasad Gupta to his wife i.e. plaintiff no.1, defendant no.1 was bound to start his separate business for supplying hosiery goods to retailers and that

income helped in acquiring the share of Bihari Lal Gupta in the year 1998 which Bihari Lal Gupta had acquired by virtue of sale deed of the year 1970

which was self acquired by defendant no.1 on his own earning and savings and it was never meant for the joint family as alleged by the

appellants/plaintiffs.

On the basis of the above pleadings of the parties, the trial court entered into to decide the lis and formulated following issues to decide the suit:

(I) Is the suit, as framed, maintainable?

(II) Have the plaintiffs got cause of action for the suit?

(III) Whether the plaintiffs are jointly entitled to 1/2 share in the property described in Schedule-I and 2A of the plaint and whether plaintiff no. 2 is

entitled to 1/2 share in Schedule- IA and 2 of the plaint?

(IV) To what other relief or reliefs are the plaintiffs entitled to?

(V) Is there unity of title and unity of possession in between the parties?

The appellants/plaintiffs have produced and examined altogether four witnesses, namely, Sushila Devi (P.W.1), Umesh Prasad Gupta (P.W.2), Hira

Lal Mishra (P.W.3) and Shiv Shankar Prasad Gupta (P.W.4) to prove and establish their case. The appellants/plaintiffs have further filed sale deed of

the year 1970 (Ext.1), sale deed of the year 2002 (Ext.2), certified copy of judgment (Ext.3), decree (Ext.4) and sale deed dated 03.06.1998 (Ext.5).

Respondent no.1/defendant no.1 has produced and examined altogether eight witnesses, namely, Satrughan Singh (D.W.1), Sukhdev Rawani

(D.W.2), Binay Krishna Prasad (D.W.3), Mali Ram (D.W.4), Sri Ballav Dev (D.W.5), Govind Mandal (D.W.6), Bimal Pandit (D.W.7) and Dinesh

Prasad Gupta (D.W.8). Respondent no.3/defendant no.3 has adduced one witness Tara Devi in rebuttal of the plaintiffs' case. The defendants have

filed 11 Municipal receipts (Ext.A to A/10), three Miscellaneous receipts (Ext.B to B/2), eight rent receipts (Ext.C to C/7), the map (Ext. D to D/2),

counterfoil of deposit in bank for preparation of bank draft (Ext. E to E/3), two sale deeds (Ext.F to F/1), a receipt of Baba Enterprises (Ext.G),

receipt of Tirupati Enterprises (Ext. H to H/1), receipt of Agrawal Traders (Ext.H/2), seven receipts of Bhagwati Enterprises (Ext.I to I/6), Challan of

cement (Ext. J to J/16), six challans of Karuna Brick Industries (Ext. K to K/5), form of challan for sale (Ext.L), chirkut (Ext.M), order dated

31.10.1973 (Ext.N) in order to establish the case of the respondents/defendants and rebut the case of the appellants/plaintiffs.

While deciding issue No.III, the trial court came to the finding that the appellants/plaintiffs have got no share in the property described in

Schedule-I and 2/A of the plaint and further held that plaintiff no.2 alone has got 1/2 share in the property described in Schedule I/A of the plaint.

Mr. Prashant Pallav, learned counsel appearing for the appellants submits that the specific case of the appellants/plaintiffs is that Schedule-I of the

property was purchased by Kesho Prasad Gupta out of his own fund in the name of his minor son-Dinesh Prasad Gupta (defendant no.1) and Bihari

Lal Gupta, which has been stated in paragraphs 4 and 5 of the plaint. He further submits that Schedule-II property was purchased by Umesh Prasad

Gupta (appellant no.2) and Dinesh Prasad Gupta (respondent no.1), out of their own earning. He also submits that financial competence of Kesho

Prasad Gupta is fortified with the evidence of P.W. 1 in her examination-in-chief in paragraphs 3 and 7, in cross-examination of P.W.1 in paragraphs

15, 17 and 18, in examination-in-chief of P.W.2 in paragraphs 2 and 10, in cross-examination of P.W.2 in paragraph 22, in examination-in-chief of

P.W.6 in paragraph 6, in cross-examination of P.W.3 in paragraphs 9, 10, 14 and 15, in examination-in-chief of P.W.4 in paragraph 15 and in cross-

examination of D.W.8 in paragraphs 27 and 31. He further submits that Ext.1 is the sale deed of the year 1970, wherein, the property is purchased by

Kesho Prasad Gupta in the name of his eldest son i.e. respondent no.1 and his brother Bihari Lal Gupta. By way of referring Ext.5, which is a sale

deed of the year 1998, he submits that this sale deed was executed between Kesho Prasad Gupta and Bihari Lal Gupta, wherein, at page 4 Bihari Lal

Gupta has categorically stated that the property was purchased by Kesho Prasad Gupta out of his own money and after purchase Kesho Prasad

Gupta with his family remained in possession till his lifetime and after his death, his family members continued to remain in possession as joint-owner.

He further submits that the evidence of jointness of property and common enjoyment are apparent from the examination-in-chief of P.W.1 in

paragraph3, cross-examination of P.W.1 in paragraphs 20 and 30, examination-in-chief of P.W.2 in paragraph 2, 5 and 31, cross-examination of

P.W.2 in paragraph 27 and cross-examination of D.W.8 in paragraph 27. By way of referring Ext.5, he submits that the uncle (Bihari Lal Gupta) has

admitted that the property was purchased by Kesho Prasad Gupta out of his own money, whereas, respondent no.1/defendant no.1 claims that the

property was purchased by the gift given to him and his uncle (Bihari Lal Gupta) by grandmother. He further submits that respondent no.1/defendant

no.1 has not produced any witness to prove that gift was given to him by grandmother. The oral partition story was developed later on and no

evidence regarding the same has been given by respondent no.1/defendant no.1, although it was stated by him that he could produce his uncle Bihari

Lal Gupta as witness, but he failed to examine him. He further submits that respondent no.1/defendant no.1 acted as Karta of the family as he was

eldest son of Kesho Prasad Gupta, which is also apparent from paragraph 65 of cross-examination and paragraph 22 of examination-in-chief.

Respondent no.1/defendant no.1 was only 8-9 years old when the suit property was purchased and he was not having any source of income. He

further submits that building plan (Ext.D) was sanctioned for the entire property in 1987 which is contradictory to the story of oral partition between

defendant no.1 and his uncle in the year 1984-85. He further submits that there was no reason to get the building plan sanctioned for the entire

property in 1987. He further submits that the claim of oral partition is also falsified taking into consideration the revenue receipt (Ext.A/6), which has

been drawn in favour of both defendant no.1 and his uncle Bihari Lal Gupta for the year 1990-91 i.e. after the date of the partition. He submits that in

that view of the matter the claim of oral partition does not stand. He further submits that the case of the defendant on the point of gift cannot be

believed. The defendant claims that his father was struggling to make ends meet and huge amount was being spent on his treatment and gift of

Rs.5,551/- was paid to him and his uncle by grandmother, but no money was given to his father, who at that time was the Karta of the family. He

further submits that it is settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate

and in absence of any proof of evidence, such legal presumption continues to operate in the family. The burden therefore lies upon the member who

after admitting the existence of jointness in the family property asserts his claim that some property out of the entire lot of ancestral property are his

self acquired property. To substantiate his argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Adiveppa and

Ors. v. Bhimappa and Ors., reported in (2017) 9 SCC 586.

Paragraph 19 of the said judgment is quoted herein below:

“19. It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate

and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the

member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of

ancestral properties are his self-acquired property.â€​

On the point of joint status, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mudi Gowda Gowdappa Sankh v. Ram

Chandra Ravagowda Sankh, reported in 1969 (1) SCC 386. Paragraph 5 of the said judgment is quoted herein below:

“5. It was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severence of joint

family status and the family could not continue to be joint after 20th April, 1944, which was the date of the partition deed. In other words,

the argument was that there was a declaration by the coparceners of their intention to separate and that declaration was sufficient to put an

end to the joint family status of the two brothers. In our opinion, there is no substance in this argument. It is now well established that an

agreement between all the coparceners is not essential to the disruption of the joint family status, but a definite and unambiguous indication

of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status.

It is immaterial in such a case whether the other members assent or not. Once the decision is unequivocally expressed, and clearly intimated

to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in

order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the

joint family must be definite and unequivocal. If however the expression of intention is a mere pretence or a sham, there is in the eye of law

no separation of the joint family status.â€​

With regard to presumption of properties, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mallappa Girimallappa

Betgiri & Ors. v. R. Yellappagouda Patil & Ors., reported in AIR 1959 SC 906.

Paragraphs 7 and 10 of the said judgment are quoted herein below:

“7. There is no dispute that the ""K"" properties came to the appellant by transfer under the deed of sale mentioned earlier nor that the

other properties were acquired out of the income of the ""K"" properties. Both the Courts below however disbelieved the case of the appellant

that the ""K"" properties had been transferred to him without any consideration. They came to the conclusion that the consideration

mentioned had been paid. They further held that the evidence showed that there was a sufficient nucleus of joint family property, called the

Belhode properties, out of which the ""K"" properties could have been acquired and that being so, a presumption arose that the ""K

properties acquired in the name of the appellant, the senior member of the joint family, were joint properties and it was for the appellant to

discharge the onus of proving that they were not so. The Courts below came to the conclusion that the appellant had not been able to

discharge that onus and, therefore, held that the ""K"" properties were joint family properties. Since the subsequently acquired properties

had been admittedly purchased with the income of the ""K"" properties, it followed that they were also joint properties.

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We then find that the appellant was a manager of a joint family and had acquired the ""K"" properties in his own name for a

consideration. It was never disputed that the Belhode properties were joint family properties. The Courts below held that the Belhode

properties provided a sufficient nucleus of joint family property out of which the ""K"" properties might have been acquired. The sufficiency

of the nucleus is again a question of fact and it is not for us to interfere with the findings of the Courts below on that question. For reasons

to be hereinafter stated, we think that apart from the Belhode properties the appellant had no other source of income. In those

circumstances a presumption arises that the ""K"" properties were the properties of the joint family: See Srinivas Krishnarao Kango v.

Narayan Devji Kango, (1955) 1 SCR 1: (AIR 1954 SC 379). Unless that presumption is rebutted it must prevail. It is quite clear that the

appellant has failed to displace that presumption. The only way in which he sought to do so was by proving that the transfer to him was by

way of a gift. But he has failed. The presumption remains unrebutted.â€​

With regard to coparcener, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Commissioner of Income Tax, Madhya

Pradesh, Nagpur and Bhandara v. Seth Govindram Sugar Mills, reported in AIR 1966 SC 24.

Paragraph 10 of the said judgment is quoted herein below:

“10. The next question is whether after the death of Nandlal a new partnership was entered into between the representatives of the two

branches of the families, i.e, Nandlal's and Bachhulal's. Before we consider this question it is as well that we advert to incidental questions

of law that were raised. One is whether the widow of Nandlal could under Hindu law be a karta of the joint Hindu family consisting of three

widows and two minors. There is conflict of view on this question. The Nagpur High Court held that a widow could be a karta: see

Commissioner of Income-tax, C. P. and Berar v. Laxmi Narayan, (1948) 16 ITR 313: (AIR 1949 Nag 128); Pandurang Vithoba v.

Pandurang Ramchandra, ILR (1947) Nag 299: (AIR 1947 Nag 178): The Calcutta High Court expressed the view that where the male

members are minors and their natural guardian is the mother, the mother can represent the Hindu undivided family for the purpose of

assessment and recovery of taxes under the Income-tax Act: see Sushila Devi Rampuria v. Income-tax Officer 1960-38 ITR 316: (AIR 1959

Cal 697); and Sm. Champa Kumari Singhi v. Additional Member, Board of Revenue, West Bengal, (1961) 46 ITR 81 (Cal). The said two

decisions did not recognize the widow as a karta of the family, but treated her as the guardian of the minors for the purpose of income-tax

assessment. The said decisions, therefore, do not touch the question now raised. The Madras and Orissa High Courts held that

coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she

has no legal qualifications to become the manager of a joint Hindu family. The decision of the Orissa High Court in Maguni Padhano v.

Lokananidhi Lingaraj Dora, AIR 1956 Orissa I, followed the decision of the Madras High Court in Radha Ammal v. Commissioner of

Income-tax, Madras, wherein Satyanarayana Rao, J., observed:

The right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the

joint family............Further, the right is confined to the male members of the family as the female members were not treated as coparceners

though they may be members of the joint family"".

Viswanatha Sastri, J., said:

The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the

coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family.

Thereafter, the learned Judge proceeded to state:

It will be revolutionary of all accepted principles of Hindu law to suppose that the senior most female member of a joint Hindu family, even

though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the

family.............She would be the guardian of her minor sons till the eldest of them attains majority but she would not be the manager of the

joint family for she is not a coparcener.

The view expressed by the Madras High Court is in accordance with well settled principles of Hindu law, while that expressed by the

Nagpur High Court is in direct conflict with them. We are clearly of the opinion that the Madras view is correct.â€​

He further submits that the property in the name of defendant no.1 was purchased by his father Kesho Prasad Gupta and it must be presumed to be

joint family property unless it is proved otherwise. To substantiate his argument, he relied upon the judgment rendered by the Patna High Court in the

case of Ram Lakhan Missir v. Pandit Raghunandan Missir & Ors., reported in AIR 1989 Pat 145.

Paragraphs 16 and 19 of the said judgment are quoted herein below:

“16. It was urged on behalf of the appellant that the admitted case of the parties is that the descendants of Shaligram Missir were

originally joint and all the properties were held by them as members of joint Hindu family and any acquisition, even if it be in the name of

one of the co-sharers, must be deemed to be part of the joint family property unless the person, who claims it to be self acquired and

exclusive acquisition, proves to the contrary. The argument, therefore, is that even if the Mayurbhanj properties have been only in the name

of Nem Naryan Missir, they must be presumed to be joint family property unless it is proved otherwise. Before such a presumption can arise

it has to be established, firstly that there was a nucleus of the joint family and secondly that the nucleus was such as to yield and provide

income for acquisition of other properties for the joint family. No doubt the plaint of title suit 3 of 1948 as also schedule B of the present

suit, indicate that the joint family held certain lands and this could provide a nucleus. However, it is clear that the joint family was quite big

and there were several persons to be supported from income of the joint family property as it then existed. There is nothing to show that the

nucleus was able to yield such income which could be invested for acquisition of properties in Mayurbhanj district in Orissa, for the joint

family. In absence of proof of this fact, the presumption as suggested by the plaintiff-appellant cannot arise. This is settled law and this

principle has been laid down even in the cases cited by the appellant himself namely AIR 1957 Patna 644 (Janki Sao v. Commr. of Income-

tax) and AIR 1965 SC 289 (K. V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer).

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Even from the legal aspect the plaintiff's stand in regard to schedule C properties is untenable. His contention is that since the

descendant of Shaligram Missir were members of a joint Hindu family, any acquisition even though in the name of one member will be

deemed to be part of the hotchpot unless the person who claims it to be his exclusive property proves that this is so. This presumption is not

applicable where there has already been previous partition between the parties. In such a situation the presumption would be otherwise

namely that all joint family assets have been included for partition in the earlier suit and the burden lies on the person who claims that any

left out property was also part of the joint family assets, to prove the same. This principle has been laid down in AIR 1981 Patna 111

(Ambika Devi v. Baknukund Pandey). The relevant passage from the above decision may be quoted as follows:-

The defendant 1st party as held above, has succeeded in providing the partition, as alleged by them. This being so, the presumption would

be that all the properties of the joint family were divided and a person alleging that the joint family property, in the exclusive possession of

one of the members after the partition is joint and is liable to be partitioned has to prove his case which the plaintiffs have signally failed to

prove.

In the present case, undisputedly there were two earlier partition suits and, therefore, legal presumption would be that the entire joint family

assets were included in the earlier suits. Since the plaintiff's claim is that schedule C properties though a part of joint family assets had been

left out the burden clearly lies on him to establish that it was joint family property and had been wrongly left out. The evidence on record,

as indicated above clearly shows that the plaintiff has failed to discharge this burden. Hence both from the legal as well as factual aspect

the plaintiff's case in respect of schedule C properties has no substance at all.â€​

He further submits that there will always be a presumption that a minor is joint with his father and this status cannot be disturbed during his minority

except by a decree of the Court or the operation of the law. To substantiate his argument, he relied upon the judgment rendered by the Allahabad

High Court in the case of Har Prasad v. Mst. Ram Devi, reported in AIR 1964 All 64.

Paragraph 3 of the said judgment is quoted herein below:

“3. Mr. Baleshwari Prasad learned counsel for the appellant who argued this case with his usual tenacity repeated before this Court

some of the arguments which were rejected by the Courts below. First he contended that the finding of the Courts that Jwala Prasad was

competent to execute the deed of gift is erroneous. Counsel pointed out that the plaintiff's version that the shop was the separate property of

Jwala Prasad having been rejected, the onus was on her to prove that the other coparceners remained joint, but there was nothing to show

whether the status of the remaining members of the family was joint or separate after Beni Prasad had separated from them. The Courts

below had wrongly presumed that the family was joint and Jwala Prasad executed the deed of gift as the Karta with the consent of the other

coparceners. Mr. Baleshwari Prasad pointed out that alter the filing of the suit for partition by one of the co- parceners the presumption of

jointness disappears, and the Court cannot presume without evidence that the remaining members continued as co-parceners, as they could

have continued as tenants in common. This argument ignores the fact that the other three brothers of Beni Prasad were minors at the time

when he separated. The finding of the lower appellate Court is that under the decree for partition one-sixth share of Beni Prasad alone was

partitioned. After his exit from the joint family the father and three minor sons were left. There will always be a presumption that a minor is

joint with his father and this status cannot be disturbed during his minority except by a decree of the Court or the operation of the law.

Therefore the finding of the lower Court that Jwala Prasad was joint with his three remaining sons including the defendant is correct.â€​

Learned counsel for the appellants further relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Mst. Rukhmabai v. Lala

Laxminarayan & Ors., reported in AIR 1960 SC 335.

Paragraph 5 of the said judgment is quoted herein below:

“5. There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu

family by definement of shares which is technically called ""division in status"", or an actual division among them by allotment of specific

property to each one of them which is described as ""division by metes and bounds"". A member need not receive any share in the joint estate

but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect the status of the

remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from

the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide

brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted

upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether moveable or

immoveable, held by a member of a joint Hindu family, is joint family property. 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.â€​

He further submits the legal position is well settled that sufficient joint family nucleus for acquiring property exists the property standing in the name of

an individual member who is presumed to be acquired from out of family funds and so to form part of joint family property, unless the contrary is

shown. To substantiate his argument, he relied upon the judgment rendered by the Orissa High Court in the case of Smt. Manohari Devi & Ors. v.

Choudhary Sibanava Das & Ors., reported in AIR 1983 Orissa 135.

Paragraph 10 of the said judgment is quoted herein below:

“10. ... … … 19. xx xx But Mr. Nambiar learned counsel for the respondents relied upon the decision in K.V. Narayanaswami Iyer v.

K.V. Ramakrishna Iyer, AIR 1965 SC 289, as indicating a contrary view, i.e., that the presumption is the same whether it is male or female

member of the joint family. We do not think that there is any warrant for that inference from the decision of the Supreme Court. That

decision arose out of a suit for partition and the question arose whether the properties standing in the name of the wife, son and the

grandson of a male member of the family were joint family properties or the separate properties of those individuals. The Supreme Court

observed at page. 292 as under-

The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for

acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and

so to form part of the joint family property unless the contrary is shown. Vide Amritalal v. Surathlal, AIR 1942 Cal 553, Appalasami v.

Suryanarayanamurthi, ILR (1948) Mad 440 : AIR 1947 PC 189.

With regard to the property standing in the name of the first defendant's son, the position is different. With regard to the property standing

in the name of the wife and daughter of the male member, while dealing with the burden of proof and presumption and as to whether the

acquisition must be deemed to be with the funds of the first defendant, the Supreme Court at page 292 has observed thus-

It was also argued that acquisitions in the name of the third defendant and the 6th defendant should also be made to have been made with

funds advanced by the first defendant himself and so these also should be presumed to have been acquired with joint family funds if it is

shown that the joint family had sufficient nucleus for acquiring those at the date of the acquisitions and the first defendant does not show

positively that the funds with which they were acquired did not belong to the joint family.

From this sentence it was argued that the Supreme Court was of the view that even in the case of properties standing in the names of female

members, there is a presumption in favour of joint family and it should be rebutted by the husband. This sentence should not be divorced

from the context and particularly from the important fact that it was not disputed that acquisitions in the name of the wife of the first

defendant were made with the funds advanced by him. It is also important to notice that in that case, it was clearly admitted that the

acquisitions were made in the name of the wife with the funds of the first defendant, the male member and the only question was whether

those funds supplied by the male member were his own separate property or the joint family property. On the facts, the Supreme Court held

that the funds in the hands of the first defendant male member were his own separate possession. It will thus be seen that the Supreme Court

had not to consider a situation as in the instant case. We are not prepared to hold that the Supreme Court intended to overrule the uniform

view taken by all the High Courts in a series of cases and upset this well settled and well established rule of distinction in the matter of

presumption.

On review and analysis of several authorities the learned Judges have held as noted above that the presumptive doctrine available in

respect of property acquired in the name of any male member of the joint family is not applicable in the case of properties standing in the

names of female members and that in the latter case, it is for the party who claims properties as joint family properties to specifically plead

the particulars and details in the pleadings and establish the same by adducing necessary evidence. The legal position has been correctly

enunciated in the aforesaid decision. In the present case the onus is on the plaintiffs to prove that the 'B' schedule property was purchased

benami in the names of Durgabati and defendant No. 8 from out of the joint family funds. The plaintiffs have not pleaded the particulars

and details in the plaint. Their evidence in this regard is also most unsatisfactory. They mainly rely on the admission of defendant No. 1 in

the contract of sale (Ext.1) that the 'B' schedule property was purchased benami in the names of the two wives. However, there is no basis to

hold that this admission by defendant No. 1 was made by him in a representative character. On the contrary the recital in Ext.1 is to the

effect that defendant No. 1 had purchased the 'B' schedule property benami in the names of his two wives with his own funds. There is no

mention at all of joint family or joint family funds. In AIR 1974 SC 171 - Jayadayal Poddar (deceased) v. Bibi Hazra, it was held, ""it is well

settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the

person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either

directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of the fact. The essence of a

benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily

pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that

rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn

document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the

deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question

whether a particular sale of benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test,

unformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts

are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the

property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the

relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title- deeds after the sale and (6) the conduct of

the parties concerned in dealing with the property after the sale."" As regards motive for the benami transaction, the plaintiffs have stated in

Paras 9 and 10 of the plaint that defendant No. 1 decided to purchase the property in the name of his wife, Durgabati due to delicacy in

purchasing the same in his own name from his own agnates and also decided to purchase in the name of defendant No. 8 with a view not to

allow the co-sharers to know that he was recovering the family property himself. These reasons put forward as justification for the benami

transactions are not at all convincing and further no supporting evidence has been led in court. As regards relationship between the

alleged benamidar and the alleged principal, the late Durgabati and defendant No. 8 being the wives of defendant No. 1, it is probable that

they could have been selected as benamidars. As regards custody of the documents of title, plaintiffs have examined P.Ws. 6 and 11'. In his

examination-in- chief P.W 6 has stated that Jagabandhu Moharir had referred to the sale deeds and rent receipts in respect of the 'B'

schedule property in his presence and those papers were in the custody of defendant No. 1, but in cross-examination he has stated that he

had not gone through the sale deeds nor were they read out in his presence and that none of them had read the sale deeds. P.W.11 has

stated that Jaga Moharir had verified three sale deeds and municipal receipts and said that two sale deeds were in the name of the first wife

and the third one in the name of defendant No. 8 and that to his query defendant No. 1 had said that he had purchased the property benami

in the names of his wives. This statement of P.W. 11 is contradicted by P.W. 6 who has said that none of them had gone through the sale

deeds and that Jaga Moharir might have read them, but did not give out anything to others. This is a serious contradiction. Further, it is

surprising that in the contract for sale, Ext.1, the particulars of sale deeds executed in favour of Durgabati and defendant No. 8 are

significantly absent. The names of the vendors, the amounts of consideration, the stamp number and date and the details of the properties

have not at all been mentioned in Ext.1. If the title deeds with regard to the 'B' schedule property were with defendant No. 1, there is no

explanation why the particulars with regard to the said deeds were not incorporated in Ext.1. On the other hand, defendant No. 2, son of

defendant No. 1 through his first wife, and defendant No. 8 have stated in court that the title deeds were all along in their possession. In

these circumstances it cannot be said that the title deeds in respect of the 'B' schedule property were in the possession of defendant No. 1. As

regards possession of the 'B' schedule property, the evidence shows that neither the late Durgabati nor defendant No. 8 was in exclusive

possession of the same, but that the family used to stay in the suit house during their visits to Cuttack. As regards source of the

consideration money for the 'B' schedule property, the plaintiffs have not led any evidence to show that the consideration money was paid

by defendant No. 1 from out of his own pocket, though it has been pleaded in the plaint and noted in Ext.1. In Exts. C-2, C-2/1 and A-3 it

has been noted that the consideration money was paid by the two wives from out of their Stridhan funds, Defendant No. 2 (d.w. 5 for

defendants 2, 3 and 4) has stated that his mother had about two hundred acres of agricultural lands. A part of this was purchased by his

mother in her own name, a part was purchased by her benami in the names of Mrutunjaya and Sadhu Charan and the remaining part was

purchased by Durgabati's mother-in-law benami in the name of the said Mrutunjaya and Sadhu Charan. Defendant No. 2 has no personal

knowledge about these acquisitions. D.W. 1 for defendant No. 2 was working as Durgabati's Gumasta since 1940 and prior to him his

father was working as the Gumasta. According to him, the two hundred acres of lands were recorded benami in the names of the previous

Gumastas Sadhu Charan and Mrutunjaya, but Durgabati was in possession of the same. After d.w. 1 joined service under Durgabati he got

deeds of releases executed and registered from those Gumastas. In his presence Sadhu Charan had executed the release-deed, Ext.A-2 and

Mrutunjaya had executed the release-deed Ext.B-2. D.W.1 was also present at the time of execution of Exts.C-2 and C-2/1. He has stated

that the consideration money for those sales was paid by Durgabati out of her own funds through his father. D.W. 1 has further stated that

he was managing the properties of Durgabati on her behalf and was rendering accounts to her. However, no accounts have been filed-

Defendant No. 2 has explained that the accounts were being submitted in loose sheets and he used to destroy them after scrutiny, D.W. 1

has further stated that Durgabati had also purchased lands from others vide Exts.D-2 and D-2/1 and the consideration amounts were paid

by Durgabati. The evidence of defendant No. 2 and d. w. 5 shows that Durgabati had properties of her own and the capacity to purchase

her portion of the 'B' schedule property from out of her own funds. In her evidence defendant No. 8 has stated that defendant No. 1 had

settled -about 47 acres of land with her in the years 1945 and 1946. No deeds of settlement were executed, but receipts were issued in

favour of defendant No. 8 in respect of the settled lands. However, no rent receipts have been filed except Exts.D-3 to D-3/8 which show

defendant No. 8 as the owner in respect of some of these lands Defendant No. 8 purchased twelve acres of land at Marichpur from Sadhu

Charan Ray in 1948 under the sale deed, Ext.B-3. Exts.C-3, C-3/1 and C-3/2, sale deeds dated 25-5-1962, 27-4-1964 and 7-4-1967

respectively, show that defendant No. 8 had purchased lands at Bhubaneswar from her Stridhan funds. The evidence of defendant No. 8 is

corroborated by the evidence of her Gumasta, D.W. 2 for defendant No. 8. Ext.B-3/1 is the release-deed dated 26- 8-1955 executed by

Gangadhar Misra in favour of defendant No. 8 and Exts.D- 3/9 to D-3/l6 are the rent receipts showing payment of rent by defendant No. 8

in respect of the released lands. The evidence discussed above shows that defendant No. 8 had property of her own and the capacity to

purchase her portion of the 'B' schedule property from out of her own funds. Considering the evidence adduced in this case we hold that the

plaintiffs have failed to prove that the 'B' schedule property was purchased benami by defendant No. 1 in the names of his two wives with

his own funds or with the joint family funds and that the 'B' schedule property is the Stridhan property of the late Durgabati and defendant

No. 8. The findings of the trial court with regard to issues 5 and 8 are confirmed.â€​

On the basis of the above judgments, learned counsel for the appellants submits that there is presumption of jointness in the family, but there is no

presumption of property. He further submits that there is no dispute regarding this proposition of law. It is well settled principle of law that the party

agitating that a joint family property has to discharge his burden to prove the same and once the initial burden is discharged the onus shifts on the

defendants to dispel and prove that the property is his self acquired property. He further submits that the evidence has to be looked in the present

facts of the case which will establish that the appellants/plaintiffs had discharged their initial burden by documentary as well as oral evidence. The

evidence of the defendants suffers from material contradiction rather it further makes out the case that the suit property is joint family property. He

further submits that the appellants have discharged their initial burden of proof and onus has shifted on the respondents. The respondents have

miserably failed to prove that the property was his self acquired property and, therefore, it may be declared that the property in Schedule-I is part of

the common hotch potch of the joint family and the property was purchased by the father in the name of his minor son and younger brother for the

benefit of the entire family.

Per contra, Mr. Shankar Lal Agarwal, learned counsel appearing for respondent no.1 submits that issue no. III is the core issue. The property was

acquired by Kesho Prasad Gupta in the year 1970 from his own income as benami in the name of Bihari Lal Gupta and Dinesh Prasad Gupta

(defendant no.1). He further submits that under the Hindu law, there is a presumption about the jointness of property. He further submits that there

may be presumption that there is a joint Hindu family, but there can be no presumption that joint family possession is joint family properties. He further

submits that as per Section 101 of the Indian Evidence Act, 1872, the burden to proof lying on the party who substantially assailed affirmative of the

issue and not on the party who denied it. He also submits that the appellants/plaintiffs had claimed in paragraphs 10 and 11 that the property was

acquired by Late Kesho Prasad Gupta, out of his personal saving and fund jointly. In order to prove that it was a joint family property, he submits that

two things are to be proved by the appellants/plaintiffs, firstly if it is proved that the appellants/plaintiffs have sufficient money and earnings for the

purchase of the property and secondly the court below at page 12 of the judgment has discussed the issue that there is no mention in the plaint that

Kesho Prasad Gupta has some separate money apart from joint family property, which he had earned by separate activities and business, rather

P.W.1 in paragraph 8 has stated that her husband was doing job in the shop of a readymade garments under the name and style of Sonika Garments,

but in the same paragraph, she has stated that shop was not in existence before five or six years from the date of deposition, which means at the time

of purchase of the property, Sonika Readymade shop was not in existence. He further submits that in paragraph 9, P.W.1 has stated that her husband

had not any business exist in the name of Sonika Readymade and he has no property in Bara Bazar and the evidence of the appellants/plaintiffs

clearly says that Kesho Prasad Gupta has no money to put a consideration amount of the suit property described in Schedule-I. He further submits

that the trial court has considered the recital of Ext.1, the sale deed dated 01.02.1970 that the consideration money was paid by the purchaser to the

vendor. He further submits that consideration money was paid by Dinesh Prasad Gupta and Bihari Lal Gupta and not by Kesho Prasad Gupta. By

way of referring paragraph 43 of AIR 1981 Patna 82, he submits that the property acquired by a member of the family by sale deed from stranger

during life time of the Karta would be deemed to be his self acquired property. In absence of evidence produced by member claiming share in the

property to prove that the joint family had sufficient income which could form the nucleus for the acquisition of the property. He further submits that

no presumption would arise with the member claiming share to have interest in the property. He further submits that there is clear recital in the written

statement regarding payment of money by grandmother of defendant no.1 and further P.W.1 has also stated in paragraph 10 that at the time of birth

of any son and daughter, there is custom to gift if the elders having sufficient means. He further submits that P.W.1 has admitted that her mother-in-

law and father-in-law had sufficient money as they have landed property. The trial court has held at page 16 of the judgment that P.W.1 has herself

stated that she has no money to make any gift and to do any act or to assist any one by transaction of money, but the mother-in-law, who is the

grandmother of defendant no.1, having sufficient money being owner of the landed property and the trial court came to the finding that the

grandmother of defendant no.1 has sufficient money. He further submits that as per Section 101 of the Indian Evidence Act, the onus of proof lying on

the person who asserts it whether it is benami transaction or by other mode. This burden has to be strictly discharged by adducing its legal evidence of

a definite character. He further submits that deed is a solemn document executed after considerable deliberation and a person expressly shown as the

purchaser or transferee in the deed, starts with the initial presumption in his favour and the apparent state of affairs is the real state of affairs. He

further submits that there cannot be straight jacket formula with regard to question whether a particular sale is Benami or not. He also submits that the

courts are usually guided by following circumstances:

(i) The source from which the purchase money came;

(ii) The nature and possession of the properties, after the purchase;

(iii) Motive if any for giving the transaction as Benami colour;

(iv) The conduct of the parties concerned in dealing with the property after the sale;

(v) The conduct of the parties concerned in dealing with the property after the sale.

To substantiate his arguments, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Anil Rishi v. Gurbaksh Singh,

reported in (2006) 5 SCC 558.

Paragraph 19 of the said judgment is quoted herein below:

“19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of proof and onus of

proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has

greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing

forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-

evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible.

In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a

relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.â€​

With regard to benami transactions, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Om Prakash Sharma alias

O.P. Joshi v. Rajendra Prasad Shewda & Ors., reported in (2015) 15 SCC 556.

Paragraphs 11 and 13 of the said judgment are quoted herein below:

“11. The “other†relevant circumstances that should go into the process of determination of the nature of transaction can be found

in Jaydayal Poddar v. Bibi Hazra which may be usefully extracted below:

“6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always

rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which

would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The

essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which

cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the

serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a

deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or

transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though

the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or

acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia,

the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of

the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the

relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of

the parties concerned in dealing with the property after the sale.

The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. 1 viz. the source,

whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is

in reality for the benefit of another.â€​ (emphasis supplied)

xxx                  xxx                  xxx                  xxx

Applying the aforesaid principles to the facts of the present case we find that the High Court was perfectly justified in coming to the

conclusion that the property though purchased from the funds of Jagannath Joshi was really for the benefit of his widow Moni Debi and

therefore Moni Debi was the real owner of the property. In this regard, the entries of the name of Moni Debi in the Municipal and Land

Revenue records; the fact that the brothers of Jagannath Joshi were no longer alive (according to the plaintiff the property was purchased

by Jagannath Joshi in the name of his wife to protect the same from his brothers) are relevant facts that have been rightly taken into

account by the High Court. The fact that the property was managed by Jagannath Joshi which fact accords with the practice prevailing in a

Hindu family where the husband normally looks after and manages the property of the wife, is another relevant circumstance that was taken

note of by the High Court to come to the conclusion that all the said established facts are wholly consistent with the ownership of the

property by Moni Debi.â€​

With regard to source from which the purchase money came, he relied upon the judgment rendered by the Hon'ble Patna High Court in the case of

Rukaiya Begum & Ors. v. Fazalur Rahman & Ors., reported in AIR 1998 Pat 1.

Paragraphs 9 and 12 of the said judgment are quoted herein below:

“9. The question with regard to benami transaction has been gone in detail by the Apex Court in the case of Jaydayal Poddar V/s. Bibi

Hazra 1974 (I) SCC 3 : (AIR 1974 SC 171) where the Apex Court has held as under:-

It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests

on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would

either directly proves the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence

of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be

easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus

that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn

document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the

deed, starts with the initial preusmption in his favour that the apparent state of affairs is the real state of affairs. Though, the question

whether a particular sale is benami or not, is largely one of the fact, and for determining this question, no absolute formulae or acid test,

uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia the Courts

are usually guided by these circumstances:

(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any,

for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged

benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after

the sale.

In Bhim Singh V/s. Kan Singh, AIR 1980 SC 727 the Apex Court following the decision rendered in the case of Jaydayal (supra) reiterated

the same principle and held as under (at page 734):

The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus : (1)

The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved

that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie

assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true

character of the transaction is governed by the interntion of the person who has contributed the purchase money and (4) the question as to

what his intention was has to be decided on the basis of the sorrounding circumstances, the relationship of the parties, the motives

governing their action in bringing about the transaction and their subsequent conduct etc.

The Apex Court while considering the similar question in Union of India V/s. Moksh Builders and Financers, AIR 1977 SC 409 has held as

under (at page 413):

The burden of proof is, however, not static and may shift during the course of the evidence. Thus while the burden initially rests on the

party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be

given if no further evidence is adduced by either side i.e. on the evidence on the record. As has been held by this Court in Kalwa Devdattam

V/s. Union of India (1964) 3 SCR 191: AIR 1964 SC 880 that where evidence has been led by the contesting parties on the question in issue,

abstract consideration of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the

parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion. It is therefore necessary to weigh the

evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the

benami"" allegation, what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant

and admissible evidence.â€​

In the case of S. K. Devi V/s. J. P. Singh 1962 BLJR 314 the question for consideration before the Apex Court was as to whether the

property standing in the name of the wife shall be accepted as benami purchase by the husband in the name of his wife. The Apex Court in

its judgment laid down the following principle of law:

“The law with regard to benami transactions where the property is alleged to have been bought in anothers name is well settled. The

burden of proof is, to begin with, on the party pleading that a transaction is benami. A variety of circumstances are relevant in this

connection like the source of the consideration for the acquisition of the property, the possession of the property, the conduct of the parties

or their predecessors in relation to it, the custody of the title deeds and so on. The most important fact, however, is the source of the money,

but the other facts also play varying parts. This burden does not rest in one place but shifts to the other side, and it increases if the original

parties to the transaction are dead. Suspicious circumstances are not sifficient to prove the benami character of a transaction; but if

evidence on the other side does not exist, even slight but forceful evidence on the part of the person alleging the benami nature of the

transaction may be sufficient. It is from this angle that the case has to be judged, and at the very start, we are constrained to say that,

though the learned subordinate judge bore the correct law in mind, he seems to have placed the burden initially upon the plaintiff. The

question of burden of proof at this late stage has become academic, because when the parties have led all the evidence that they wish to

lead, an inference must necessarily be drawn from the entire evidence, irrespective of the source from which it comes. In this case, each side

has drawn support from the evidence brought into the case by the other. In view of the fact that the High Court went into all the evidence to

draw its contrary conclusion, it becomes necessary to see whether the conclusion reached by the High Court or that reached by the

subordinate Judge is right in the light of the facts established.

The similar question came up for consideration before a Bench of this Court in the case of Bijoy Kant Dey V/s. Radha Kant 1983 BLT 100

where his Lordship has held as under:

Before me also the finding that the defendant was not a minor in the year 1940 was not challenged. Learned counsel for the two sides also

agreed that on the facts of this case. The determining factor will be the finding as to who paid the consideration money. They also agreed

that on the peculiar facts of this case, the other tests regarding motive, custody of documents, relationship and possession fall in the

background. I think, the learned counsel were right. The question, therefore, is as to who paid the consideration money. But before I take

up that question, I want to make it clear that the onus to prove the acquisition by the plaintiff in the Benami name of the defendants lies

heavily on the plaintiff."" The apparent state of affair is the real state of affair unless proved to the contrary. "" The Sale-deeds statd in the

name of the defendant that is the apparent state of affair.If the plaintiff has to succeed, he must prove that the apparent state of affair is not

correct. Keeping this fact in view the evidence on this point has now to be examined.

xxx                  xxx                  xxx                  xxx

Be that as it may, the law is well settled that amongst the Mahommedan Law there is no presumption of jointness. In the book

Mahommedan Law"" by Syed Ameer Ali (vol. 2) Vth Edition, the author says:

Among the Mahommedans there is no presumption of jointness. When the members of a Mahommedan family live in commensality, they do

not necessarily form a ""joint family"" in the sense in which that expression is used with regard to Hindu; and, in Mahommedan Law there is

not, as there is in Hindu Law, any presumption that the acquisitions of the several members are made for the benefit of the family.

In some parts of India, however, Mahommedan families have adopted the Hindu Joint Family system. In many instances Hindu families

converted to Islam have adhered to the custom and continued to live jointly. In such case the legal rights of the parties have been held to be

subject to the same principles as are applicable to members of a Hindu Joint family. The onus of establishing the custom as always existing

in the family is strictly on the party alleging it.The mere fact of members of a Mahommedan family living in commensality and holding their

properties jointly is not sufficient to raise the presumption which, under the Hindu Law, arise from de facto jointness.

With regard to the fact that if the minor accepts the gift during his minority of a property burdened with obligation and on attaining majority does not

repudiate but retains it, he would be bound by the obligation attached to it and also acceptance of gift can be presumed to have been made by

beneficiary or on his behalf without any overt act signifying acceptance by the minor, he relied upon the judgment rendered by the Hon'ble Supreme

Court in the case of K. Balakrishnan v. K. Kamalam & Ors., reported in (2004) 1 SCC 581.

Paragraphs 18, 19 and 25 of the said judgment are quoted herein below:

“18. Section 127 throws light on the question of validity of transfer of property by gift to a minor. It recognises minor’s capacity to

accept the gift without intervention of guardian, if it is possible, or through him. It reads:

“127. Onerous gift.â€"Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others

are not, burdened by an obligation, the done can take nothing by the gift unless he accepts it fully.

Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to

accept one of them and refuse the others, although the former may be beneficial and the latter onerous.

Onerous gift to disqualified person.â€"A donee not competent to contract and accepting property burdened by any obligation is not bound

by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he

becomes so bound.â€​ (underlining by the Court)

The last part of Section 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to

contract under Section 11 of the Contract Act is, however, competent to accept a non-onerous gift. Acceptance of an onerous gift, however,

cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not

repudiate but retains it, he would be bound by the obligation attached to it.

xxx                  xxx                  xxx                  xxx

Where a gift is made in favour of a child of the donor, who is the guardian of the child, the acceptance of gift can be presumed to have

been made by him or on his behalf without any overt act signifying acceptance by the minor. In the instant case, the mother who is the

natural guardian gifted the property to her minor son in the year 1945. The donee was an educated lad of 16 years of age, capable of

understanding and living jointly with the donor. Knowledge of the execution of the gift would have been derived in normal circumstances,

by the minor, being beneficiary, sooner or later after its execution. Knowledge of gift deed to both the parents as natural guardians and the

donee is sufficient to indicate acceptance of gift by the minor himself or on his behalf by the parents. The gift deed was revoked by the

mother much after its execution as late as in the year 1970. By that time, the donee had become a major and he never repudiated the gift.

We have examined the terms of the gift deed. Non-delivery of possession of the gifted property, non-exercise of any rights of ownership over

it, and failure by the donee, on attaining majority, in getting his name mutated in official records are not circumstances negativing the

presumption of acceptance by the minor during his minority or on his attaining majority. The donor had reserved to herself, under the terms

of the gift deed, the right to manage, possess and enjoy the property during her lifetime. Since the possession and enjoyment of the property

including management of the school were retained by the donor during her lifetime, the acceptance of the ownership of the property gifted

could be by silent acceptance. Such acceptance is confirmed by its non-repudiation by his parents and by him on attaining majority. As is

the evidence on record, the mother, the donor, was herself the natural guardian of the minor donee. The father was also a guardian and

had knowledge of the gift. He also did not repudiate the gift on behalf of the donee. The donee himself was 16 years of age and could

understand the nature of beneficial interest conferred on him. He also had knowledge of the gift deed and on attaining majority did not

repudiate it. These are all circumstances which reasonably give rise to an inference, if not of express but implied acceptance of the gift.

Where a gift is made by the parent to a child, there is a presumption of acceptance of the gift by the donee. This presumption of acceptance

is founded on human nature. “A man may be fairly presumed to assent to that to which he in all probability would assent if the

opportunity of doing so were given to him.â€​

Learned counsel for respondent no.1 further submits that when in a suit for partition, a party claims that any property or item of the property is joint

family property, the burden of prove rests on the party asserting the same. To substantiate his argument, he relied upon the judgment rendered by the

Hon'ble Patna High Court in the case of Chandar Sah & Ors. v. Mst. Godhani & Ors. , reported in AIR 1981 Pat 43.

Paragraph 6 of the said judgment is quoted herein below:

“6. In my considered view, learned Additional District Judge has misdirected himself on a substantial question of law which vitiates his

judgment. As I have already observed above, the undisturbed finding of the trial court is that Bhola Sah was possessed of not even a dhur

of land till his death except a house in which he was residing. Now I must state here some well settled principles of law which cover cases of

the instant nature. It is true that if a joint family possessed property which was admittedly joint, the presumption would be that the property

continues to be joint, and the burden would lie upon the member who claims it as his separate property to prove that there was a partition

and that he got it on such partition. It is also true that this presumption is peculiarly strong in the case of brothers. It is further well settled

that dealings and statements of parties determine the status of the family as to whether it was joint or jointness had disrupted. But, it is

equally well settled that there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for

partition a party claims that any property or item of the property is joint family property the burden of proving that it is so rests on the party

asserting the same, (reference in this connection may be made to the case of Shadi Lal v. Lal Bahadur AIR 1933 PC 85 and Smt. Rukhmabai

v. Lakshminarayan. AIR 1960 SC 335). To render the property joint, the plaintiffs must prove that the family was possessed of some

property which formed sufficient nucleus with the income of which the property could have been acquired (reference in this connection may

be made apart from the numerous decisions of the various High Courts to the decisions in the cases of Appalaswami v. Suryanarayanmurti,

AIR 1947 PC 189 and AIR 1960 SC 335 (supra)).â€​

With regard to proof with regard to benami nature of transaction, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of

Binapani Paul v. Pratima Ghosh & Ors., reported in (2007) 6 SCC 100.

Paragraph 47 of the aforesaid judgment is quoted herein below:

“47. Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been

considered by this Court in Valliammal v. Subramaniam wherein a Division Bench of this Court held:

“13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies

on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties

concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve

the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere

conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M.P., Thakur

Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi, and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has

been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for

determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court

spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction:

(1) the source from which the purchase money came;

(2) the nature and possession of the property, after the purchase;

(3) motive, if any, for giving the transaction a benami colour;

(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;

(5) the custody of the title deeds after the sale; and

(6) the conduct of the parties concerned in dealing with the property after the sale.’ (Jaydayal Poddar v. Bibi Hazra,

The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where

the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining

whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on

the touchstone of the above two indicia.

* Â Â Â Â Â Â Â Â * Â Â Â Â Â Â Â Â *

It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the

party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did not have any justification for purchasing

the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to

the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant

witnesses completely demolishes his case.â€​

He further submits that execution of sale deed for half of the scheduled property alleged to have been sold out for legal necessity which had fallen into

the share of minor, burden lay on the plaintiffs to discharge that the sale deed executed to his son in regard to the share which had fallen into the share

of minor, was sold for the legal necessity. To substantiate his argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the

case of Rangammal v. Kuppuswami & Anr., reported in 2011 (4) JCR 37 (SC).

Paragraphs 20 to 23 of the said judgment are quoted herein below:

“20. Since the High Court has misplaced burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well

established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment. It is also equally and undoubtedly true that

the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of

proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it

has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in the case of Koppula

Koteshwara Rao vs. Koppula Hemant Rao,4 2002 AIHC 4950 (AP).

It has been further held by the Supreme Court in the case of State of J & K vs. Hindustan Forest Company,5 2006 (12) SCC 198,

wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the

weakness or absence of defence to discharge onus.

It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi,6 2008 (11) SCC 306 (308 )that it

is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff

who claimed title to the property which was a subject-matter of the alleged sale deed of 24.2.1951 for which he had sought partition against

his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the

joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed

which he executed in favour of his own son and nephew by selling the property of a minor of whom he claimed to be legal guardian without

permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably

failed to discharge. The onus was clearly on the plaintiff to positively establish his case on the basis of material available and could not

have been allowed by the High Court to rely on the weakness or absence of defence of the defendant/appellant herein to discharge such

onus.

The courts below thus have illegally and erroneously failed not to cast this burden on the plaintiff/respondent No.1 by clearly

misconstruing the whole case and thus resulted into recording of findings which are wholly perverse and even against the admitted case of

the parties.â€​

He further submits that in view of the error in the pleading of the appellants/plaintiffs as there is no specific pleading, which was found in the plaint

and in that view of the matter the appellants/plaintiffs have failed to prove their case. He relied upon the judgment rendered by the Hon'ble Supreme

Court in the case of Bachhaj Nahar v. Nilima Mandal & another, reported in (2008) 17 SCC 491.

Paragraphs 13, 14 and 15 of the said judgment are quoted herein below:

“13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable

parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in

the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As

a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or

relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The

question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any

relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When

there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or

oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of

evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.

The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement

was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the

first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the

following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao:

“6. … No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to

trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side,

it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are,

therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence

which has been led in the case is sufficient to reach the right conclusion.â€​

But the said observations were made in the context of absence of an issue, and not absence of pleadings.

The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a

Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul: (AIR p. 738, para 10)

“10. … If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was

involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from

relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by

the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely,

in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings

would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection

is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the

parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that

undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence

and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court

cannot do injustice to another.â€​

In view of the aforesaid judgments, he submits that there is no illegality in the judgment of the trial court. The trial court has fairly held at page 10 of

the judgment that the defendants have not pleaded anything in the written statement which may lead to infer that there was separation in the joint

family and both the parties travelled in the suit without having any word regarding jointness of the family. He further submits that this First Appeal

may not be entertained by this Court.

In view of the above submissions of the learned counsel appearing for the parties and considering the judgments relied upon by the learned

counsel for the appellants and respondent no.1, this Court has to consider only point i.e. whether schedule property is self-acquired property of

defendant no.1 or the property of Kesho Prasad Gupta acquired in the name of Dinesh Prasad Gupta (defendant no.1) and Bihari Lal Gupta for the

benefit of the entire family. In examination-in-chief of P.W.1, she has stated in paragraph 7 that disputed property is residence of the parties. The land

by deed of the year 1970 was purchased by her husband in the name of his eldest son Dinesh Prasad Gupta and brother Bihari Lal Gupta. She has

also stated that before purchasing the property, an agreement was also entered by her husband. She has further stated that entire amount was paid by

her husband out of his own income and after selling some of her ornaments. In paragraph 7, she has further stated that in the disputed property, there

are four shops, out of which one is vacant and rest of the three shops, two tenants are there whose names are Arun Kumar Mundra and Rahul

Kumar Bharti and rent of about Rs.2,400/-is being paid. In paragraph 10, she has stated that her husband died in the year 1986 and her eldest son

Dinesh Prasad Gupta was acting as a Karta of the family. In paragraph 18 of her cross-examination, she has stated that in Castair town area one tiles

house was constructed by her husband and concrete house was constructed by her son, tiles house still exists, but the same is in jeopardized condition.

At that time, in tiles house about Rs.30,000/- to Rs.35,000/- was expended. In paragraph 19 of the cross-examination, P.W.1 has stated that at the

time of instituting the case, she has not stated about the tiles house. She has denied the suggestion given in paragraph 20 of the cross-examination

about ouster from the house. In paragraph 30 of her cross-examination, she has stated that in the disputed property where they reside, Dinesh Prasad

Gupta has occupied two rooms, in which, there are four shops, one is closed and three are on rents. Rents are being collected by Dinesh Prasad Gupta

and they are not receiving any farthing of that. She has further stated that they are also entitled for rent, but they are being deprived of the same. In

paragraph 15 of the cross-examination, she has stated that she is being looked after by her younger son Umesh Prasad Gupta. In paragraph 17 of

cross-examination, she has stated that the shop in the name and style of Sonika Garments was purchased @ Rs.1 Lakh.

In paragraph 2 of examination-in-chief of P.W.2- Umesh Prasad Gupta, he has stated that disputed house is their residential house, which is situated

at Mouza- Shyamganj, Mohalla- Castair Town, Ward No.14, which was purchased by his father by way of registered deed in the year 1970 in the

name of his eldest brother Dinesh Prasad Gupta and uncle Bihari Lal Gupta. The entire amount in question for purchasing the property was paid by his

father out of his own income by selling some ornaments of her mother. In paragraph 10 of the examination-in-chief, he has stated that his father was

doing business of readymade garments in the rented shop namely Sonika Garments. In paragraph 22 of cross-examination, he has denied the

suggestion to the effect that it is not correct to say that Sonika Garments shop was not taken by his father. He has further denied about the suggestion

of business being done by his father at pathway.

P.W.3 in paragraph 6 of his examination-in-chief has stated that Kesho Prasad Gupta was having readymade garments shop as Sonika Garments in

front of Rasraj. In paragraph 5 of cross-examination, he has stated that Kesho Prasad Gupta used to discuss about the properties purchased by him.

In paragraph 6 of cross-examination, he has also stated that the house was constructed in the year 1985. In paragraph 10 of cross-examination, he has

denied the suggestion to the effect that it is not correct to say that there was no garments shop in front of Rasraj and Kesho Prasad Gupta was doing

business on pathway. In paragraph 14 of cross-examination, he has further stated that Kesho Prasad Gupta was having a good business and in the

said business, his sons were also involved. In paragraph 15 of cross-examination, he has stated that in Surajmal Jalan Road, the land was purchased by

Kesho Prasad Gupta and the house was constructed with his own income.

P.W.4 has denied the suggestion in paragraph 15 of the cross-examination to the effect that it is not true to say that Kesho Prasad Gupta was not

having enough money to run his family. He has further stated that Kesho Prasad Gupta has taken loan once that too for purchasing the land.

D.W.8 has stated in paragraph 27 of the cross-examination that when he was studied in 7th Standard, he was residing along with family members in

Sanvesh Bazar in a rented house, where they were living since childhood till 1976-77. The name of landlord was Indra Narayan Sah. In that house,

entire family was residing i.e. father, mother, brother, sisters and rent was being paid by the father. In paragraph 31 of the cross-examination, D.W.8

has stated that before the death of his father, a case was filed by Md. Kamaruddin for eviction of shop is not in his knowledge, which was taken by

his father on lease for 10 years and his father was doing business of readymade garments from this shop.

On perusal of Ext.1-sale deed of the year 1970, it transpires that the property was purchased by Kesho Prasad Gupta in the name of his eldest son

Dinesh Prasad Gupta (respondent no.1) and his brother Bihari Lal Gupta. Ext.5 is the sale deed of the year 1998 executed between Bihari Lal Gupta

and Dinesh Prasad Gupta, wherein, it has been categorically stated that the property was purchased by Kesho Prasad Gupta out of his own income

and after purchase Kesho Prasad Gupta live with his family till his life time. Ext.5 is the deed of absolute transfer, wherein, it is admitted that the

property was purchased by Kesho Prasad Gupta out of his own income. Respondent no.1/defendant no.1 claims that the property was purchased by

gift given to him and his uncle by his grandmother. Thus from this document, it is admitted fact that the property was purchased by Kesho Prasad

Gupta. In paragraph 40 of cross-examination of Dinesh Prasad Gupta (D.W.8), he has stated that he does not have any documents of the gift which

he received. He has further stated that his Advocate can only state about this fact. The oral story of partition of the year 1984-85 also cannot be

sustained, in view of the fact that building plan was sanctioned for entire property in the year 1987-88, which is marked as Ext.D. It is an admitted fact

that respondent no.1/defendant no.1 was minor aged about 8-9 years and at that time he was not having any source of income. The revenue receipts

at Ext. A/6 continued upto 1991 in the name of Diinesh Prasad Gupta- defendant no.1 and his uncle Bihari Lal Gupta that too after the date of

partition and in that view of the matter, the claim of oral partition by the defendants has got no legs to stand. The gift cannot be believed in view of the

statement made by D.W.8. In view of the above facts, the appellants have been able to prove that there is legal presumption that every Hindu family

is joint in food, worship and estate and in absence of any proof of division, such legal presumption continues to operate in the family. There is

presumption that a minor is joint with his father and this status cannot be disturbed considering his minority from the court of operation of law. Thus,

the finding by the lower court about jointness with his three remaining shops including the defendants is correct. It has been proved that there was

sufficient joint family nucleus and the suit properties have been acquired. The judgments relied upon by the learned counsel for the appellants in this

regard are also supporting the case of the appellants. The judgment relied upon by the respondents that there is presumption of joint family, but there is

no presumption of jointness of property, there is no dispute regarding this proposition of law. However, it is also well settled proposition of law that the

party who agitates the jointness of family, he has to discharge the burden of proof. The evidence of defendants is very materially contradictory if the

suit property is joint family property. The appellants have been able to prove about the jointness of the property and purchase of property by Kesho

Prasad Gupta. Thus, the finding of the trial court that plaintiff no.2 has got half share only in Schedule-I/A property cannot sustain. Appellant

no.2/plaintiff no.2 is the younger son of plaintiff no.1 and Kesho Prasad Gupta and brother of respondent no.1/defendant no.1 and he is also entitled

for the share in the Schedule-I property to the extent of 1/2 share in the suit property. Accordingly, it is declared that plaintiff no.2 is also entitled for

1/2 share in Schedule-I/A property. Thus, Schedule-I/A property is partitioned between defendant no.1 and plaintiff nos. 1 & 2 to the extent of 1/2

share in the suit property. The judgment and decree dated 31.05.2008 and 05.06.2008 respectively passed by the learned Subordinate Judge No. I,

Deoghar in Title (Partition) Suit No. 109 of 2006 is set aside and modified to the above extent.

Office is directed to prepare decree accordingly. Office is also directed to send back the Lower Court Records with the copy of this judgment to

the court below.

Accordingly, this First Appeal stands allowed in part and disposed of.