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Durga Prasad and anr. Vs. Chauharja Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All536; 122Ind.Cas.413
AppellantDurga Prasad and anr.
RespondentChauharja Prasad
Excerpt:
- - whether the property was acquired in the lifetime of sheoambar lal's father or after his death, whether the purchase money was from earnings acquired by sheoambar lal or from earnings acquired by ganesh, or from both, or from ancestral joint family property, there appears to me to be no reliable evidence. on these findings it must be held that the plaintiffs, on whom decidedly the burden lay, failed to establish that the house in dispute was ancestral or joint family property in which they had an interest. in this view of the matter we think that the plaintiffs-appellants have failed to make out their title to the house in dispute. for the foregoing reasons, this appeal must fail and is dismissed with costs......adopted son plaintiff 1 (father of plaintiff 2) is. it was alleged that the house in dispute was joint family property, in which plaintiff-appellant 1 obtained an interest at the time he was adopted by sheoambar lal. the defence was that it was the self-acquired property of sheoambar lal, in which the plaintiffs-appellants obtained no interest, the same having been made a gift of to defendant 2 (son of defendant 1), who was related to sheoambar lal and for whom the latter had great regard. the gift is said to have been made in 1912, when sheoambar lal intimated that fact to the municipal board and requested that the name of the donee be entered in the register of houses situate within the municipal limits. subsequently a formal deed of gift duly registered was executed by sheoambar lal.....
Judgment:

Niamatullah, J.

1. The present appeal has arisen out of a suit brought by the plaintiffs-appellants for a declaration of their right to and possession of a house, which admittedly belonged at one time to Munshi Sheoambar Lal, whose adopted son plaintiff 1 (father of plaintiff 2) is. It was alleged that the house in dispute was joint family property, in which plaintiff-appellant 1 obtained an interest at the time he was adopted by Sheoambar Lal. The defence was that it was the self-acquired property of Sheoambar Lal, in which the plaintiffs-appellants obtained no interest, the same having been made a gift of to defendant 2 (son of defendant 1), who was related to Sheoambar Lal and for whom the latter had great regard. The gift is said to have been made in 1912, when Sheoambar Lal intimated that fact to the Municipal Board and requested that the name of the donee be entered in the register of houses situate within the municipal limits. Subsequently a formal deed of gift duly registered was executed by Sheoambar Lal in favour of the defendant-respondent 2. Both the Courts have dismissed the suit. The lower appellate Court has held that the defendants have been in adverse possession for more than twelve years before the institution of the suit and that, though the property should be considered (in the view that it took) as joint family property, yet the plaintiffs have no right left to it.

2. The decrees of the Courts below have been impugned in appeal. Two questions have been argued before us: (1) whether the house in dispute was joint family property in which plaintiff-appellant 1 acquired an interest at the time of his adoption, so that Sheoambar Lal could not make a gift of it to defendant 2; and (2) whether the defendants have perfected their title by adverse possession for more than twelve years. As regards the first question, the finding of the lower appellate Court is somewhat obscure. It held that Sheoambar Lal had a brother, Shankar Lal, who should be presumed to be a member of a joint Hindu family with him, but that:

whether the property was acquired in the lifetime of Sheoambar Lal's father or after his death, whether the purchase money was from earnings acquired by Sheoambar Lal or from earnings acquired by Ganesh, or from both, or from ancestral joint family property, there appears to me to be no reliable evidence.

3. As regards the so-called joint family consisting of Shankar Lal and Sheoambar Lal, the learned Judge was unable to find on evidence that their father left any property other than a residential house, as to which it was doubtful whether it had been constructed by him. At any rate on his finding it cannot be said that there was any property which could be the source of income from which subsequent acquisitions could be made. There is again total absence of evidence showing that Shankar Lal and Sheoambar Lal together owned any property as members of a joint Hindu family which could form the nucleus of subsequent additions. The only foundation, then, of the existence of a joint family consisting of Shankar Lal and Sheoambar Lal was their relationship, to which may be added joint residence and mess. The house in dispute was brought by Sheoambar Lal, who constructed it. On these findings it must be held that the plaintiffs, on whom decidedly the burden lay, failed to establish that the house in dispute was ancestral or joint family property in which they had an interest. It may be presumed that two Hindu brothers, or father and son, were members of a joint Hindu family; but it does not follow that any particular property in dispute in a case should be presumed to be joint family property. If, however, it is established that there was a nucleus of joint family property around which subsequent acquisitions could gather, it may be presumed, in the absence of proof to the contrary, that later acquisitions were part of the joint family property. There is no presumption that any property acquired by an individual member of a joint Hindu family, which is not shown to have possessed any nucleus, was joint family property. In this view of the matter we think that the plaintiffs-appellants have failed to make out their title to the house in dispute.

4. On the question of adverse possession, the finding of the lower appellate Court that the defendants Have been in possession exclusively from the year 1912 is decisive. It is said that defendant 1 assumed the guardianship of plaintiff 1 under the will of Sheoambar Lal dated 1908. Sheoambar Lal died some time after 1913. As already stated, in 1912 ha placed defendant 2 in possession of this house under an oral gift, referred to by him in his petition dated 5th February 1912 to the Municipal Board. The subsequent registered deed of gift, dated 16th February 1913, confirmed the previous inchoate gift. The present suit was brought on 16th February 1925, i.e. more than 12 years after the oral gift but less than 12 years after the registered deed of gift. It has been found that the defendants have been in possession since, at least, 5th February 1912. The character of this possession has been exclusive and in assertion of the title derived from the gift. It has also been found that the present suit was brought more than three years after the plaintiff attained majority. Under these circumstances there can be no question that the defendants have perfected their title by adverse possession. For the foregoing reasons, this appeal must fail and is dismissed with costs.


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