Yogeshwar S/o Dreep singh vs Manbodh Singh, S/o Shri Dreep Singh And Ors

@JUDGMENT-JUDGMENT

1 Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff No. 2 under Section 100

of the CPC against the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree by which trial Court

dismissed the suit of the plaintiffs finding no merit.

2 Mr. Sourabh Sahu, learned counsel for the appellant/plaintiff No. 2 would submit that both the Courts below have committed grave legal error in

holding that the suit property was not purchased by plaintiffs as well as defendant No. 1 jointly out of the joint family income, therefore, plaintiffs are

entitled for partition and possession to the extent of 1/3rd share each in the suit property, as such, the appeal deserves to be admitted for hearing by

formulating substantial question of law in this regard.

3 The two plaintiffs filed a suit for partition and possession that the suit property which is the subject matter of purchase by sale deed dated

25/01/1992 from one Pyarilal was purchased by the plaintiffs as well as defendant No. 1 out of the joint family income, therefore, they are entitled for

1/3rd share each in the suit property.

Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit which was affirmed by the first appellate

Court in the appeal preferred by the plaintiffs.

The Supreme Court in the matter of Srinivas Krishnarao Kango v. Narayan Devji Kango and others1 AIR 1954 SC 37 9has held that proof of the

existence of a joint family does not lead to the presumption that property held by any member of the family is joint. It was observed as under:-

“8....Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the

burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some

joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the

burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family

property.....â€​

In the matter of Mudi Gowda Gowdappa Sankh (supra) the Supreme Court has held that there is no presumption that merely because the family is

joint so the property is also joint. So the person alleging the property to be coparcenary property must prove it. But if it is shown that there was a

nucleus of the joint family property, then any acquisition by its aid by a member is joint property. It was observed as under:-

“6..... This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been

acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-

acquisition to affirmatively make out that the property was acquired without any aid from the family estate.....

In the matter of Mudi Gowda Gowdappa Sankh (supra), the Supreme Court relied upon the ratio of Privy Council judgment in Randhi Appalaswami

v. Randhi Suryanarayanamurti & Others ILR 1948 Mad 440 (PC) and held as under:

...Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden

rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint

property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the

burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

Likewise, in the matter of D.S. Lakshmaiah and another v. L. Balasubramanyam and another (2003) 10 SCC 310 the Supreme Court relied upon its

earlier decisions in this regard and held as under:-

“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint

Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was

nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the

person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that

was available.â€​

The Supreme Court in the matter of Rangammal (supra) has held that in a suit for partition only joint family property has to be included by holding

as under:-

“45. It hardly needs to be highlighted that in a suit for partition, it is expected of the plaintiff to include only those properties for partition to which

the family has clear title and unambiguously belong to the members of the joint family which is sought to be partitioned and if someone else's property

meaning thereby disputed property is included in the schedule of the suit for partition, and the same is contested by a third party who is allowed to be

impleaded by order of the trial court, obviously it is the plaintiff who will have to first of all discharge the burden of proof for establishing that the

disputed property belongs to the joint family which should be partitioned excluding someone who claims that some portion of the joint family property

did not belong to the plaintiff's joint family in regard to which decree for partition is sought.â€​

Reverting to the facts of the present case in view of the aforesaid legal position, it is quite vivid that plaintiffs have failed to plead and prove that

the suit property was purchased by plaintiffs as well as defendant No. 1 jointly out of the joint family income. They have also failed to prove that joint

family had the nucleus to purchase the suit property. Both the Courts below have come to the conclusion that defendant No. 1 purchased the suit

property out of his own income, therefore, it is his separate property and it was not purchased out of the joint family income as the plaintiffs have

failed to prove that the joint family had nucleus to purchase the suit property. The aforesaid finding recorded by both the Courts below is a finding of

fact based on evidence available on record which is neither perverse nor contrary to the record and does not involve any substantial question of law

for determination.

The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).