Umesh Mahanta and Others vs Kali Charan Mahanta and Others

S.K. Ray, J.—Defendants 1 to 3 in a suit for partition are the Appellants. Defendants No. 3 having died during the pendency of this appeal was substituted by her daughter Gaurimani Dei by order dated 28-9-1970. Defendant No. 4 who was impleaded in this appeal as Respondent No. 4 having died issueless, his name was expunged by order of this Court dated 14-5-1969. The Plaintiffs and Defendants are members of one family as will be seen from the genealogy set out herein below.

Baya

Late Hadibandhu Bauribandhu Late Madhusudan Gandhari Late Padmalochan

Nabaranga

Kalicharan

The Plaintiffs claim partition of ''Kha'' schedule properties comprising of ix lots. Baya acquired lot No. 1 (8 Mans, 17 gunths, 13 biswa and 16 gandas) in mouza Gua Behera and lot No. 2 (4 Mans. 18 gunths, 2 biswas and 16 gandas) in mouza Chelia prior to 1895. He further acquired lot No. 3 in mouza Barudihi by a registered sale deed dated 14-2-1908 (Ext. Z) in the name of his eldest son Hadibandhu. He purchased this land from his mother-in-Law Hatikuanri from out of the income of the properties comprised in lots 1 and 2. He again acquired lot No. 4 in mouza

Badasahi in the name of his eldest son Hadibandhu by a registered sale deed dated 28-4-1925 (Ext. K). The consideration paid under Ext. Z is Rs. 50/ - and under Ext. K is Rs. 65/ -. Properties covered by lot No. 5 situated in village Gua Behera were purchased by Hadibandhu by two registered sale deeds dated 6-2-1923 and 24-5-1929 which are respectively Exts. M. and N. Properties in lot No. 6 in village Barudihi were purchased in the name of Umesh (Defendant No. 1) by a registered sale deed dated 20.5.1957 (Ext. L). Lots 3 to 6 were acquired out of the income of lots 1 and 2 which are admittedly joint family properties, though the sale deeds stand in the names of deceased Hadibandhu (husband of Defendant No. 3) and Umesh (Defendant No. 1), and, as such, constitute joint family properties. Plaintiffs 1 and 2 claim 4 annas and Plaintiff No. 3 claims 4 annas share in the aforesaid 6 lots and want their shares to be carved out by partition.

Defendant No. 4 filed written statement which was adopted by Defendants 1 to 3. Their common defence was that:

lots 1 and 2 are ancestral properties and, as such, are partible. Lots 3 to 6 are self-acquisition of Hadibandhu and are not, therefore, partible. Lot No. 3 has been purchased in the name of Hadibandhu with the money supplied by his father-in-law and lots 4 and 5 have been acquired out of the income of lot No. 3. Lot No. 6 has been purchased in the name of Defendant No. 1 with the money supplied from his father-in-law''s side.

The trial Court found that the income of lands in Jots 1 and 2, after meeting the family expenses, would constitute sufficient nucleus from out of which lot No. 3 valued at Rs. 50/ - could be easily acquired, and, as such, that lot must be presumed to be joint family property. This lot, infact, was purchased by Baya in the name of his son Hadibandhu. It further found that the Defendants failed to prove that lot No. 3 was acquired with the funds supplied by the father-in-Law of Hadibandhu or that it was the latter''s self-acquired property. With regard to lots 4 and 5 the finding was that they were acquired out of the income of lot No. 3 and that the Defendants had signally failed to prove that the properties in lot No. 6 was the separate property of Defendant No. 1. It further held that after the death of Baya, his eldest son

Hadibandhu and after him Defendant No. 1 became Karta of the joint family and, accordingly, any recording of the properties of the family in their exclusive names in different settlement record of rights cannot create any separate and exclusive title without the proof of any prior partition.

In view of the aforesaid defence case, the questions which fall for consideration are (a) whether lot No. 3 was purchased with the money supplied by the father-in-law of Hadibandhu or out of the surplus income of lots 1 and 2, (b) if lot No. 3 is held to be the separate property of Hadibandhu, whether lots 4 and 5 were purchased out of the income of this lot and (c) whether lot No. 6 was purchased in the name of Defendant No. 1 with the money supplied from his father-in-Law''s side and, as such, constitute his separate properties.

It is necessary to refer briefly to the legal background in which the evidence is to be scanned. Proof of existence of joint family does not lead to the presumption that the property held by any member of the family is joint and the burden rests upon any one asserting that any item of property is joint to establish that fact. But where it is established that the family was possessed of such joint funds or Joint property which, from its nature and relative value, may have formed the nucleus from which the property held by any member of the family may have been acquired, the burden shifts to the party alleging self-acquisition to establish that the property was acquired without the aid of joint family property. The burden initially rests on the Plaintiff to establish that there was adequate nucleus out of which acquisitions could have been made. Existence and adequacy of joint family nucleus is a question of fact. Vide Apralaswami v. Surya narayanamurty and Ors. AIR 1947 P.C. 189 and Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, . One of the main tests regarding the adequacy of the nucleus is the income which the nucleus yields. It is again the burden of the Plaintiff to prove not only existence of such nucleus but also its adequacy so as to probabilise acquisition of properties claimed as separate properties by the Defendants with its aid.

It is admitted that lots 1 and 2 are ancestral properties of the parties The extent of lot No. 1, as already stated, is 8 mans, 17 gunths, 13 biswas and 16 gandas and lies in mouza Gua Behera. The extent of lot No. 2 is 4 mans, 18 gunths 2 biswas and 16 gandas and is situated in mouza Chhelia. The aggregate extent of lots 1 and 2 is 13 mans, 11 gunths and 12 gandas. In paragraph 15 of the written statement of Defendant No. 4 it is expressly stated'' that lot No. 2 was acquired by Baya with the money obtained by disposal of his ancestral lands at mouza Ghantiabuda and, thereafter, with its usfructus lot No. 1 was purchased. It appears from paragraphs 8 and 9 of the written statement of Defendants 1 to 3 that Baya acquired lots 1 and 2 prior to his marriage with Ghasini, the daughter of Makara Mahanta and his wife Hatikuanri of Barudihi. Lot No. 3 was obviously acquired on 14-2.1908 after acquisition of lots 1 and 2 and was in the name of Hadibandhu who was a minor aged 14 years at time. Baya''s marriage must, therefore, have taken place in 1895 or earlier. According to P.W. 2 the income from properties in lot No. 1 is 5 to 6 pautis and from lot No. 2, 7 to 8 pautis per mana. Thus, by the time of acquisition of lot no 3 Baya was having an income of a bout 80 pautis for at least 13 years or more before lot No. 3, according to the defence case, was acquired with the money supplied by Hadibandhu''s father-in-law. There circumstances indicate probability of existence and adequacy of joint nucleus from out of which the consideration of Rs. 50/ - for lot No. 3 could have been paid and raise a presumption that lot No. 3 is joint family property. This probability Cannot be called a fantastic conjecture because if, as the defence evidence discloses, from out of the income of Jot No. 3 comprising an area of 6 mans and odd 3 mans of land could be acquired under lot No. 4 in the year 1925 for a consideration of Rs. 65/ -, there is no reason why from income of 13 mans and odd in lots 1 and 2, the consideration of Rs. 50/ - could not have been paid for lot No. 3 under Ext. Z. It is next to be seen if defence case of self-acquisition has been made out. D.w.4, brother-in-law of Hadibandhu, has deposed that Hadibandhu married at the age of 12 or 13 to his sister and lot No. 3 was purchased one year after that marriage with money supplied by his father. That is, however, not borne out by the recitals in the deed of sale (Ext. Z) according to which consideration was paid by Baya. Again this witness says that his father purchased 5 mans and 19 gunths of land in mouza Barudihi from Hatikuanri in the name of Hadiram for a consideration of Rs. 65/ -, and adds that the land was finally purchased by his father for Rs. 50/ - at the rate of Rs. 10/ - per mana, which is not borne out by Ext. Z which is in respect of 6 mans, 6 gunths, 3 biswas and 16 gandas for a sum of Rs. 50/ - d.w.4 on his own admission in cross-examination was merely 8 years old at the time when Hadibandhu is said to have married to his sister and when his father promised to purchase some property in his name. His evidence can be said to be only hearsay. That is the best defence evidence on the point and there is little strength in that evidence to rebut the presumption of jointness which arises on the basis of the Plaintiffs'' evidence on record as indicated above. Thus the intrinsic weakness of this testimony as well as the discrepancy between the testimony of d.w.4 and the recitals of Ext. Z both as to the extent of land purchased under Ext. Z and as to the person who paid the consideration money without and independent corroboration incline me to discard d.w.4''s evidence as not acceptable. In my opinion, the contesting Defendants have failed to discharge their burden of proving lot No. 3 to be the separate property of Hadibandhu or to rebut the presumption that lot No. 3 is joint family property.

It is true that lot No. 3 was mutated in the name of Hadibandhu in the year 1920 and then was separately recorded in the record-of-rights of the years 1921 and 1943 and rent has been paid in his name as evidence by Exts. S/1 to S/4 and S/6 to S/9. The evidence is that Hadibandhu and after him Defendant No. 1 were successively the Kartas of the family after the death of Baya. That is the finding of the trial Court and it has not been impeached in this Court. He being the eldest member of the family is also presumed to be the Karta and mere recording of his name in the different settlements cannot create any separate and exclusive title in him in the absence of evidence of prior partition of which there is none on record. It is common experience that in the joint family the Karta acquires lands in the names of different members of the family and so long as unity of the family continues the properties purchased ostensibly in separate names of the family members continue to be recorded in their names in the settlement records and rents are also paid in those ostensible names.

As a result of the aforesaid conclusion that lot No. 3 is joint family property, lots 4 and 5 which were admittedly acquired out of the income of that property will necessarily constitute joint family properties. The fact that lot No. 4 was separately recorded in the name of Hadibandhu in the record-of-rights of 1943 settlement or that there was separate payment of rents in his name and that lot No. 5 was also separately recorded in the name of Hadibandhu in the 1943 settlement or payment of rents in his separate name can have no special significance or relevancy in the determination of the question whether lots 4 and 5 are joint family properties or separate properties of Hadibandhu.

By 1957 lot No. 6 was acquired the nucleus of the joint family which originally constituted lots 1 and 2 had magnified to about 20 mans of land comprised in lots 1 to 5. There can, therefore, be no doubt as to the existence of sufficient joint family nucleus which would yield sufficient surplus income from out of which consideration of Rs. 50/ - could have been paid for acquisition of lot No. 6 under the registered sale deed dated 20-5-1957 (Ext. L). This property was acquired in the name of Defendant No. 1 who was, as the finding of the trial Court stands and in my opinion correctly, the then Karta of the family. The defence plea that the consideration was advanced by the father-in-law of Defendant No. 1 has no credible evidence to buttress it.

D.w.5, the father-in-Law of Defendant No. 1 has been examined to prove that he had given Rs. 50/ - and then says Rs. 500/ - to Defendant No. 1 to enable him to purchase the land. As to the exact amount paid by him to Defendant No. 1 at the time of marriage, his evidence is prevaricating. That apart, he further says that as the amount originally paid was found insufficient to cover the expenses of registration under Ext. L for lot No. 6, he paid a further sum of Rs. 50/ - at the time of purchase. The evidence of d.w.5 as to payment of Rs. 500/ - remains uncorroborated as his payment of Rs. 500/ - to Defendant No. 1 at the marriage altar was admitted by him, in the presence of the priest and the barber who are alive, but none of them has been examined to substantiate him on the point. It also appears from his evidence that Defendant No. 1 held this amount for 13 years before he purchased lot No. 6 in the year 1957. This being the nature and character of evidence from the defence side to prove the separate character of acquisition of lot No. 6, it is impossible to hold that Defendants have discharged their onus to establish its separate character.

I am of opinion that the findings arrived at by the learned Subordinate Judge are possible findings on the evidence on record in the context of the legal principles enunciated above and cannot be said to be unreasonable. I have, therefore, no sufficient reason to differ from them.

In the result, therefore, the decision of the Court below is confirmed and the appeal is dismissed; but in the circumstances there will be no order for costs of this Court.

Appeal is dismissed without costs.