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Rajkishore Misra Vs. Bhikari Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 237 of 1977
Judge
Reported inAIR1981Ori48; 51(1981)CLT38
ActsHindu Law
AppellantRajkishore Misra
RespondentBhikari Misra and anr.
Appellant AdvocateB.K. Pal, ;B. Pal, ;N. Prusty and ;A. Mohanty, Advs.
Respondent AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
DispositionAppeal dismissed
Cases Referred(See Pratap Kishore v. Gyanendranath
Excerpt:
.....is to see the intention behind the act of the person who has acquired the property intended to throw it into the common stock and not to claim separate title thereto and failure on the part of a person who is a member of the joint family to treat his acquisition as separate would necessarily lead to a presumption that the property would be a part of the joint family property......of house site with garden.2. the case of the plaintiff is that defendant no. 2 purchased the suit property by ext. 1 dated 17-8-1925 from one govinda jena. defendant no. 2 was in exclusive possession of the property and sold the same to the plaintiff under ext. 6 dated 17-3-1972. after purchase, the plaintiff became the owner of the suit land and possessed the same. as obstruction was created by defendant no. 1 in the 'enjoyment of the suit property, the suit was filed.2. defendant no. 1 in his written statement has contended that the disputed property is the joint family property of defendants nos. 1 and 2. in the family partition, the suit property fell to the share of defendant no. 1. the suit property was also purchased on be-half of the joint family and the consideration was.....
Judgment:

N.K. Das, J.

1. Defendant No. 1 has appealed against a reversing judgment in a suit for declaration of title and confirmation of possession in respect ofA. 0.12 decimals of land appertaining to Plot No. 1387 of Khata No. 159 in Mauza Bira-Pratappur, District Puri, consisting of house site with garden.

2. The case of the plaintiff is that defendant No. 2 purchased the suit property by Ext. 1 dated 17-8-1925 from one Govinda Jena. Defendant No. 2 was in exclusive possession of the property and sold the same to the plaintiff under Ext. 6 dated 17-3-1972. After purchase, the plaintiff became the owner of the suit land and possessed the same. As obstruction was created by defendant No. 1 in the 'enjoyment of the suit property, the suit was filed.

2. Defendant No. 1 in his written statement has contended that the disputed property is the joint family property of defendants Nos. 1 and 2. In the family partition, the suit property fell to the share of defendant No. 1. The suit property was also purchased on be-half of the joint family and the consideration was paid out of the joint family funds.

3. The trial court held that the document of partition Ext. A relied upon by defendant No. 1 is a memorandum of partition which has been acted upon and the suit property fell to the share of defendant No. 1 in the said partition. Defendant No. 1 had not taken possession of the suit property and he had not been in possession of the same and that the suit property was the joint family property. Plaintiff by his purchase under the sale deed Ext. 6 has not taken possession of the suit property and has also never been in possession of the same.

The first appellate court has held that Ext. A is a deed of partition and is not admissible in evidence for the purpose of partition, but for collateral purposes it is admissible to show that there was disruption of joint status. It was further held that the property in question was the joint 'family property, acquired in the name of defendant No. 1. As the property is the joint family property, the plaintiff, by sale deed Ext. 6, hasacquired the undivided half interest of defendant No. 2 and he has also been in joint possession of the same along with defendant No. 1

4. This Second Appeal has been ad-milted on the ground that the Court below has not properly considered the document Ext. A and has not referred to Exts. C and G to G/3 and on this ground the decision of the first appellate court is erroneous. A Cross Appeal has been filed challenging the finding of the first appellate court that the property in question was thrown into joint stock, after holding that the property is the self-acquired property of defendant No. 2.

5. The finding of the first appellate court is that the disputed property is the self-acquired property of defendant No. 2 and he was in possession of the same. From Ext. A, it appears that there was a partition between defendant No. 1 and defendant No. 2 and the property in question was shown in the allotment of defendant No. 1. Reliance has been placed on Ext. L, a statement of defendant No. 2 in a previous criminal case that the property was in the allotment of defendant No. 1 in the partition. There is no dispute about the fact that Ext. A is a document evidencing partition between defendant No. 1 and defendant No. 2. As this document has not been registered, it is not admissible in support of proof of partition, but it is not disputed by both sides that it is admissible to show division of joint status in the year 1947. The ultimate finding of fact is that the property in question belonged exclusively to defendant No. 2 and it was his self-acquired property. The real test in a case where a self-acquired property has been made a part of the joint 'family property is to see the intention behind the act of the person who has acquired the property intended to throw it into the common stock and not to claim separate title thereto and failure on the part of a person who is a member of the joint family to treat his acquisition as separate would necessarily lead to a presumption that the property would be a part of the joint family property. In the absence of any evidence of a positive character to show that the acquirer intended that his acquisition should be treated as a part of the family stock,the presumption would be that it must remain his self-acquisition (See Pratap Kishore v. Gyanendranath, AIR 1951 Orissa 313). There is no evidence to show that this Ext. A was acted upon at any time. Reliance has been placed on Exts. C and G to G/3. the Parchas. These documents are subsequent to the institution of the suit and as such are of no help to defendant No. 1. The ultimate finding of the first appellate court is that when the suit property is found place in Ext. A to be within the allotment of defendant No. 1, it would be held to be in the joint possession of defendants Nos. 1 and 2. This finding appears to be erroneous. Unless and until it is established that Ext. A was acted upon and it is proved that defendant No. 2 unequivocally treated this property as the joint 'family property and never made any claim at any time that it was his exclusive property, the property should be deemed to be the exclusive property of defendant No. 2, who was in possession of the same. Ext A. does not help defendant No. 1 in any way in this respect. Ext. L also does not help defendant No. 1. From Ext. L, it appears that defendant No. 2 made a statement in a criminal case that the suit property was included in the allotment of defendant No. 1. This does not show that Ext. A was ever acted upon or that the act of defendant No. 2 was such or that the subsequent treatment of the property by defendant No. 2 was such that he never claimed any exclusive right over that property. Therefore, the findings of the first appellate court to this extent are not tenable.

6. On the aforesaid analysis, I hold that defendant No. 2 was the exclusive owner of the suit property and the plaintiff, by his purchase, has acquired right over the property and defendant No. 1 has no interest in the same. As a result of this finding, the suit of the plaintiff stands decreed and the finding of the first appellate court allowing the appeal in part is set aside as the suit is decreed in full.

7. In the result, the Second Appeal is dismissed and the Cross Appeal is allowed. In the circumstances of the case, parties to bear their respective costs throughout.


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