S.R. Vyas, J.
1. This second appeal arises out of an appellate decree passed by the Second Additional District Judge, Indore, whereby a decree for partition passed by the Court of the Civil Judge Class II, Indore had been confirmed.
2. Briefly stated the facts giving rise to this appeal are as under: The parties are related to each other as shown below:--
Gyarsibai = Moolchand = Shakarbai
(deft. 1) (died in 1948) (deft. 4)
______ |_______________ __________________|_______________
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Devising Dindayal Jamnalal Nemchand
(deft. 2) (deft. 3) (plaintiff) (deft. 5)
According to the plaintiff, his father Moolchand died in 1948 and was at the time of his death survived by two widows--Gyarsibai and Shakarbai and four sons, namely, -- Devisingh and Dindayal (by Gyarsibai), and Jamnalal and Nemchand (by Shakarbai), all of whom are parties to the present litigation. During his lifetime, Moolchand was the owner of house No. 1, street No. 6 Pardeshipura, Indore and an open plot of land bearing municipal No. 5 street No. 3, Pardeshipura, Indore. Besides these two immoveable properties, considerable amount of gold, silver, bullock carts, cattle and cash worth Rs. 12000/- was also left by the deceased Moolchand. During the lifetime of Moolchand, his widows and his sons were members of a joint Hindu family.
3. Further, according to the plaintiff, he served a notice on the defendants on 10-3-1961 and demanded partition of the joint family properties to which he and the defendants had succeeded on the death of Moolchand. In reply to this notice, the defendants denied the existence of any joint family property and the claim made by the plaintiff for partition.
4. It was also alleged by the plaintiff that after the death of Moolchand, a house, on the open plot of land, was constructed by the defendants with the aid of movable property and income from immoveable property left by Moolchand. On these allegations, the plaintiff prayed for the partition of the two houses. With regard to the moveable property, it was stated by the plaintiff that since he would not be in a position to trace it with the defendants, he was restricting his claim for partition of the immoveable properties only.
5. The defendants Gyarsibai, Devisingh and Dindayal denied the claim made by the plaintiff. With regard to the first house, it was said that after the death of Moolchand, they remained in its adverse possession and had thus perfected a title by prescription. With repaid to the new house, constructed on the open plot of land, it was contended that during his lifetime. Moolchand had transferred this plot in favour of Devisingh and that the new house was constructed with the help of self-acquired funds of the defendants. On these grounds, the defendants denied the claim made by the plaintiff.
6. On these pleadings, issues were raised by the learned Judge, who, after hearing the evidence adduced by both the parties, came to the conclusion that both the houses were liable for partition. In an appeal preferred by the defendants, the decree passed by the learned trial Judge was confirmed. Hence the present appeal by the defendants.
7. In this appeal, the learned counsel for the defendants-appellants frankly conceded that so far as the old house is concerned, he was unable to challenge the decree passed by both the learned lower Courts and that this appeal may, therefore, be considered in respect of the new house only. So far as the new house is concerned, it was said that the plaintiff was not entitled to any share in it inasmuch as it was the self-acquired property of the appellant Devisingh who had constructed it with his separate funds. On behalf of the respondents, it was contended that both the learned lower Courts have rightly decreed the plaintiff's claim in respect of new house also and that this appeal was liable to be dismissed. Having considered the respective contentions raised by both the parties, this appeal is accepted so far as the new house is concerned for the reasons given below.
8. It is admitted fact that the open plot of land on which the new house has been constructed was owned by the deceased Moolchand. According to Ex. D-1, this plot of land was mutated in the name of the defendant Devisingh in the Office of the Indore City Improvement Trust in 1947. Both the learned lower Courts have taken the view that by merely getting the open plot of the land transferred in the name of defendant Devisingh, the deceased Moolchand could not make a valid transfer in favour of his son Devisingh and that in the absence of any valid transfer the open plot of land continued to be his property till he died in 1948. Admittedly there is no document indicating that Moolchand had either transferred this plot of land in favour of his son for any consideration or by way of any gift. Even Devisingh in whose favour this transfer was made was unable to give any details of the nature and circumstances attending this transfer. In these circumstances, if the deceased Moolchand merely got this plot transferred in the name of his son in the records of Improvement Trust, then it cannot be presumed that even during his lifetime he had transferred all his interest in this open plot in favour of the defendant Devisingh. Consequently, at the time of Moolchand's death, this plot of land also will have to be regarded as his property.
9. The next question as to whether the new house on this plot of land was built by the defendant Devisingh from and out of his own funds or with the help of such funds which were left by the deceased Moolchand and which came to the hands of the defendant Devisingh and his mother Gyarsibai,
10. It is clear from the statement made by the plaintiff in his plaint that he did not claim any decree in respect of the moveable properties, which according to him, were left by Moolchand at the time of his death. Though it was stated that con-siderable valuable property in the form of gold, silver and cash was left by Moolchand, yet the plaintiff did not claim any decree with regard to these properties against the defendants. Having excluded his claim in respect of these moveable properties in the present suit, the plaintiff also stated that the construction of new house, which was admittedly made after the death of Moolchand, was with the help of the movable property left by Moolchand and the income from immovable property of Moolchand which remained in the possession of the defendants. It has now to be seen as to whether these contentions were tenable on merits and also whether the learned lower Courts were justified in law in concluding that the new house was liable to be partitioned between the parties.
11. The plaintiff's claim for partition in respect of a new house could be decreed only if:--
(i) the property left by Moolchand was used for its construction;
(ii) there was sufficient nucleus of property left by Moolchand which enabled either the defendants or the plaintiff or both of them to acquire the necessary funds for the construction of the new house; and
(iii) separate and self-acquired funds of the defendants were thrown into the common stock with the clear intention of abandoning all their separate claims to their separate or self-acquired properties.
12. More perusal of the findings recorded by both the learned lower Courts would clearly indicate that their findings are based purely on surmises and conjectures and not on a proper appreciation and consideration of the evidence on record. So fas as the plaintiff himself is concerned, he in his plaint stated that no decree was sought in respect of the moveable properties left by the deceased Moolchand. With this statement he also claimed a decree for partition of the new house on the ground that its construction was with the help of the funds left by his father and the income which the defendants derived from the other house which they took in their own possession. In spite of inconsistent claims both the learned lower Courts have not found as a fact that the property left by the deceased Moolchand was in fact utilised by the defendants Devisingh and Gyarsibai for the construction of the new house.
13. In his judgment, the learned appellate Judge in para 13 of his judgment, no doubt observed that a person acquiring properties with even small aid of family assets acquires it for the family and such acquired property becomes the family property. Proceeding further, the learned Judge observed in para 14 that the deceased Moolchand had a family dwelling house, that he had also acquired a plot of land, tint he used to maintain his sons and two wives and that he was not indebted, that Gyarsibai did not step into the witness box to rebut the evidence given by Shakarbai (P.W. 3) and that in these circumstances it must be held that the deceased Moolchand left considerable moveable property, that this property remained with the defendants when the plaintiff left the family house and that these moveable properties have not been accounted for by the defendants.
14. I fail to understand the propriety of the aforesaid finding recorded by the learned trial Judge. When the plaintiff himself had given up his claim of the moveable property left by his deceased father, it was for him to prove that joint family funds were used for the construction of the new house, more particularly when the defendant had specifically pleaded that the construction of the new house was with his separate funds which he had acquired either with his own labour or by borrowing from Gokulprasad. In these circumstances, the aforesaid finding cannot be accepted as binding in this appeal.
15. In para 13 of his judgment, the learned appellate Judge expressed the view that having found that the open plot of land was not duly transferred in favour of the defendant Devisingh it was not necessary for him to decide as to whether the construction of the new house was with the separate funds of Devisingh. Further in the View of the learned appellate Judge a person acquiring properties with even small aid of family assets acquires it for the family and such property becomes the joint family property. Lastly it was held that since the deceased Moolchand left not only the family house but an open plot of land also, and had two wives and four sons to maintain, he should be presumed to be a person possessed of sufficient funds at the time of his death. With this presumption it was further held that it was for the defendants to have accounted for immoveable property left by the deceased, Moolchand. The aforesaid views are admittedly not based on evidence on record. They are simply conjectures and surmises, which have been drawn on an imaginary basis.
16. When an important question was raised as to who financed the construction of the new house, it was necessary for both the learned lower Courts to determine positively on the basis of evidence on record as to whether the construction was financed with or without the aid of the funds left by the deceased, Moolchand. Such a question could not have been determined on the basis of surmises and conjectures. Since this question was not dealt with properly by both the learned lower Courts it would be necessary to examine the evidence on record relating to this question.
17. Admittedly, though an exaggerated claim was made with regard to the extent of the moveable property allegedly left by the deceased Moolchand, yet the plaintiff was liberal enough to give up his claim to these moveable properties on the ground that he would not be able to prove. In spite of that it was alleged that construction of the new house was financed with the aid of cash, gold, silver etc. left by the deceased Moolchand. It has to be seen as to how far these allegations were substantiated by the allegations on record. So far as the plaintiff Jamnalal himself is concerned, he in his statement as P.W. 2 did not even indicate as to from where funds were obtained by the defendant Devi-singh for the construction of this house. In his cross-examination it was, however, ad-mitted by him that since 1956-57, the defendant Devisingh was employed in one of the local Textile Mills; that Gyarsibai (mother of defendant Devisingh) paid for the construction of the new house and that these payments were not made by Devisingh. His evidence, therefore, establishes that payment for the construction of the new house was made by Gyarsibai, the mother of defendant Devisingh. Nandram (P.W. 1), the real maternal uncle of the plaintiff and Devisingh also admits that some time after the death of Moolchand, the defendant Devisingh was employed in the local Mills. He also admits that the new house was constructed some time in 1957-58 and that be is unable to contradict the statement that the new construction was made by Devisingh alone. The evidence of this witness also does not establish that construction of the new house was with the aid of funds left by the deceased Moolchand.
18. The last witness is Shakarbai, the co-plaintiff. She says that at the time of her husband's death, he left Rs. 12000/-in cash besides gold, silver and other property. Further, according to her, the construction of the new house was made jointly by her and the defendant Gyarsibai (mother of defendant Devisingh); that rent was realised jointly by her and Gyarsibai; that Devisingh was employed since 1955-56; that when she left the family house all the cash, gold etc. was kept in a box and that she did not carry anything with her. When questioned as to how much amount was spent on this house, she was constrained to admit in para 19 that she was unable to give an estimate of the total expenditure as all the payments used to be made by Gyarsibai.
19. If, without considering the evidence given by the defendant Devisingh and his witnesses, the aforesaid evidence given by the plaintiff Jamnalal, Shakarbai and their witness Nandram is considered, then it would be evident that so far as the plaintiffs are concerned they did not spend anything for the construction of the new house. There is also no evidence given by the plaintiffs that Moolchand was possessed of the substantial amount of Rs. 12000/- in cash besides gold, silver etc. The plaintiff and his mother Shakarbai would not have left the family house leaving all the gold and cash etc. even though it was jointly in possession of Shakarbai and Gyarsibai. It is evident that the claim made by the plaintiff with regard to the extent of moveable property left by the deceased Moolchand is nothing but false and cannot be accepted.
20. So far as the defendants are concerned, the defendant Devisingh has stated that he not only took up service after the death of his father; but borrowed about Rs. 4000/- from Gokulprasad (D.W. 3) for the construction of this house. According to him, the new house was mortgaged by him with Kushwah Parasper Sahakari Pedhi. In this respect he is corroborated by Laxmanprasad (D.W. 5). With regard to the loan, Gokulprasad (D. W. 3) says that from time to time a total amount of Rupees 3000/- to Rs. 4000/- was taken as a loan by Devisingh from him and the same has been repaid in due course. Shriram (D. W. 2) says that he worked as a mason when Devisingh constructed a new house and that all payments for labour and material were made by Devisingh. Munnalal (D.W. 1) also supports Devisingh on the question of construction of the new house.
21. It is true that better evidence could have been given by the defendants with regard to the expenditure incurred by them for the construction of the new house. It is, however, admitted that a new construction was made after the plaintiff had left the family house. The preponderance of evidence in the matter of the source of expenditure of the construction of the new house is in favour of the defendants. Had the plaintiffs suceeded in proving that sufficient funds were left by the deceased Moolchand to enable the defendants to construct this new house or that joint family funds were utilised for the construction of the new house or that there was sufficient nucleus with the aid of which funds necessary for the construction of the new house were acquired, then only the plaintiffs could succeed. Since there is no evidence on this matter in favour of the plaintiff it will have to be held that the construction of the new house was with the separate funds and the self-acquired property of the defendant Devisingh.
22. It appears that both the learned lower Courts had proceeded on the presumption that since a new construction was raised on the open plot of land which was family property, the construction also became the joint family property. This presumption is not justified in law. In Periakaruppan Chetti v. Arunachalam Chetti, AIR 1927 Mad 676 a similar question was considered. In that case some construction was made on an open plot of land, which was ancestral. It was contended that the new construction also became the ancestral property. It was held that:--
'The fact a house is built by one member of a joint family on joint family land cannot be regarded as sufficient by itself to show that he intends to waive his rights to the bouse as his separate property if he built it with his separate funds.'
23. The aforesaid decision of the Madras High Court was approved in Nutbehari Das v. Nanilal Das, AIR 1937 PC 61; Mallesappa Bandeppa Desai v. Desai Mallappa, AIR 1961 SC 1268; Rajanikanta Pal v. Jagamohan Pal, AIR 1923 PC 57; Annamalai Chetti v. Subramanian Chetty, AJR 1929 PC 1; Mulam Chand v. Kanchahendilal Bhaiyalal, AIR 1958 Madh Pra 304 it has been held that when any member of joint family throws any separate or self-acquired property into the common stock with the clear intention of abandoning all his separate claims to his separate or self-acquired property, then the self-acquired property blended with the joint family property also becomes a joint family property. In the instant case, it is evident that the new house was constructed by Devisingh with his separate funds; that there is not an iota of evidence to show that he intended to waive his separate claims over the newly constructed house or that he permitted the plaintiffs to claim any share in the income derived from the new house or that he intended to treat the new house also as the joint family property. In these circumstances, the plaintiff respondents cannot claim any share in the newly constructed house on the ground that it is also joint family property.
24. It has already been held above that the construction of the new house was not with the joint family funds and that there was nucleus of the joint family property which enabled the defendant Devisingh to acquire funds necessary for the construction of the new house. In these circumstances so far as the new house is concerned, the plaintiff cannot claim any share in it.
25. So far as the old house No. 1, street No. 6 Pardeshipura, Indore is concerned, the appellants have not pressed their claim in this appeal. The plaintiffs shall, therefore, be entitled to their share in this house as declared by the Courts below. So far as the open plot of land, on which the new construction has been made by the defendant Devisingh, is concerned it shall also be liable for partition. So far as the new construction on the open plot of land is concerned, the plaintiffs claim for partition of this house is dismissed. In view of the fact that a new house has been constructed by the defendant Devisingh with his own funds on the open plot of land, it is directed that in the partition, which is now to take place, the open plot of land shall be allotted to his share as indicated in the Madras case referred to above.
26. Accordingly for the reasons given above, this appeal is partly allowed. The decree passed by the learned lower Courts is partly modified. The decree under appeal in so far as it relates to partition of the old house, namely, house No. 1, street No. 6 Pardeshipura, Indore and the plot of land on which the new house has been constructed is maintained. The plaintiffs' claim for partition of the newly constructed house, namely, Municipal House No. 5, street No. 3, Pardeshipura, Indore is hereby dismissed. It is further directed that in the partition, which is to be made, the open plot of land shall be allotted to the share of Devisingh subject to such adjustments as may be required to be made at the time of the final decree. In the circumstances of the present case, both the parties are directed to bear their own costs of this appeal. Counsel's fee according to schedule or certificate, which ever is less.