R.N. Misra, J.
1. Defendants 1 and 4 to 8 are in appeal against the decree of the learned Additional Subordinate Judge of Cuttack in a suit for partition.
2. The genealogy given below shows the relationship of parties inter se:--
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Jhuma Suma Jema Bhagwan Bauribandhu
(P.1) (P.2) (P.3) (D.2) (dead)
Plaintiffs are daughters of Panu. They claimed one anna share in the B Schedule properties on the footing that they constituted joint family assets and four annas share in the C Schedule properties on the basis that those properties were self-acquired assets of Panu and Sidhu. The extent of B Schedule property is 4.60 acres while that of C Schedule property is Ac. 10.29.4.
3. Defendants 1 and 4 to 8 (5 to 8 being transferees from defendant No. 4) resisted plaintiffs' claim on the stand that Panu died in the year 1955 and not in 1958 as alleged by the plaintiffs, the C Schedule properties were joint family properties and, therefore, plaintiffs would have the same share as they claim in B Schedule properties and would not be entitled to any enhanced share and defendants 2 and 3 had colluded with the plaintiffs and set up the plaintiffs to deprive defendant No. 4 of her legitimate share.
4. The trial court found that (i) Panu died in 1958 as alleged by the plaintiffs and not in 1955 as set up by the defendants; (ii) the joint family had no sufficient nucleus for acquisition of the C Schedule property; and (iii) the C Schedule properties though jointly acquired by Panu and Sidha while they were living joint were treated as self-acquired properties of the vendees and the plaintiffs were, therefore, entitled to an enhanced share.
5. In appeal, the finding that Panu died in 1958 is no more assailed. It is, however, claimed that the joint family had sufficient nucleus from out of which the C Schedule property had been acquired and even if the C Schedule property had been acquired by Panu and Sidha while they were living joint out, of joint labour, in law it must be treated to be joint family property. Therefore, plaintiffs were not entitled to the enhanced share as found by the learned trial Judge.
6. The properties under the C Schedule were acquired in the manner and under the documents indicated below on chronological basis:--
Sl. No.Date of sale -deedExhibit markVendee's nameAmount of consideration
1.26-4-1933Ext. 18Panu Sahu & Sidha SahuRs. 10/ -/-2.25-5-1934Ext. 19'Rs. 12/ -/-220.127.116.11-8Ext. 25'Rs. 20/ -/-4.24-3-1939Ext. 20'Rs. 7/ 8/-5.24-3-1939Ext. 21'Rs. 31/ 8/-6.19-7-1939Ext. 22'Rs. 58/ 2/-7.8-4 1940Ext. 23'Rs. 48/ -/-8.8-4-1940Ext 24'Rs. 64/ 8/-9.23-6-1941Ext 26'Rs. 15/ -/-10.17-3-1942Ext. 27Panu SahuRs. 30/ -/-11.30-7-1954Ext. 35Panu Sahu & Sidha SahuRs. 100/ -/-12.4-7-1958Ext. 33'Rs. 80/ -/-
The total consideration money is within Rs. 500/-. As rightly found by the learned trial Judge, most of these properties were acquired between 1938 and 1942.
The joint family had 4.60 acres of land. What exactly was the yield from these lands and as to whether any surplus was available to form a nucleus for acquisition of the C Schedule properties have not been established by the defendants by any positive evidence. The learned trial Judge under Issue No. 2 came to hold:--
'The contesting defendants have not indicated in their written statement what was the net annual yield from the B Schedule property and what was the annual consumption of the family and what was the surplus. In their evidence the D.Ws. have not said anything on these points. The initial burden is on the contesting defendants to show that there was enough surplus for the acquisition of C Schedule property but they have failed to discharge the burden and so the burden cannot shift to the plaintiffs. 'The area of B schedule property is A. 4.60 and out of this, about A. 0.13 dec. is homestead land. So the area of cultivable lands comes to A. 4.47 dec. D. W. 4 has said in paragraph 9 of his cross-examination that about 35 years back the yield from one acre of land in their mauza was about 3 bharans of paddy. I accept this statement as correct and on this basis the gross yield from nearly 41/2 acres of land will be 131/2 bharans. The net yield will be found out by deducting 15% towards cultivation expenses from the gross yield and by this calculation, the net yield comes to 11 bharans (nearly). Most of the C schedule properties were purchased between the period from 1938 to 1942. During the period in which C Schedule properties were purchased, the members of joint family consisted of Rama Sahu, Panu, Sidha, wives of Panu and Sidha, 2 sons of Panu and 2 daughters of Sidha. The net yield is quite insufficient for maintenance of so many members. Besides consumption by family members, other household expenses must have been made by selling paddy as according to the contesting defendants the family had no other source of income. So there will be shortage of paddy for all sorts of annual consumptions and there cannot be any surplus. ...........'
Mr. Swain for the appellants claims that the learned trial Judge lost sight of the fact that even during Rama Sahu't lifetime, there had been certain additions to the B Schedule property and he relies upon five acquisitions made during 1931 to 1937 under Exts. 1, 2. 3, 4 and 5 for a total consideration of Rs. 56.50 paise. According to Mr. Swain these acquisitions indicate that in the hands of Rama Sahu joint family nucleus was available obviously from the surplus of the yield. The total consideration is little more than Rs. 50/- only and the period of acquisition is spread over six years. On the other hand, in regard to acquisition of the C Schedule property, it is found that eight sale deeds were within a span of four years (1938 to 1942) and the consideration money was around Rs. 500/-. In these circumstances, in the absence of any positive evidence, it would indeed be difficult to hold that there was a sizeable surplus yield available which could form the nucleus for acquisition of the C Schedule properties. It is quite possible, as Mr. Sinha for the respondents has contended that in the earlier years when additions were made to the B Schedule property, the members of the family were less. There is no clear evidence also to find whether Rama Sahu had any other source of income. In these circumstances, I am not prepared to take a different view of the evidence and disturb the finding of the learned trial Judge that defendants have failed to establish that there was joint family nucleus for acquisition of C Schedule property.
7. The next contention of Mr. Swain is that even if by joint labour Panu and Sidha had acquired the property, it must be assumed to be joint family asset. For the proposition he relies on two decisions of this Court being Satyanarayan Agarwalla v. Lakhiram Agarwalla, ILR (1959) Cut 526 and Binod Jena v. Abdul Hamid Khan, 1974 (1) Cut WR 572= (AIR 1975 Orissa 159). In the first case, relying on the Commentary on Hindu Law by Mayne, a learned single Judge of this Court held:--
'Thus, the position in law appears now to be well settled that when the members of a joint family, by their joint labour or in their joint business, acquired property, that property in the absence of a clear indication of a contrary intention would be owned by them as joint family property and their male issues would necessarily acquire a right by birth in such property. If a single individual acquires a fortune by his own exertion, without any assistance from ancestral property, his male issue would certainly take no interest in it. If several brothers did the same, the property would in absence of any indication of an intention to the contrary be owned by them as joint family property and in that case their male issues would necessarily acquire a right in it by birth; for under the Mi-takshara system there can be no joint family property in respect of which the male issues of the joint owners do not take a share by birth. If there is satisfactory evidence of an intention to treat the property not as joint family property but as a joint property only, i.e., as the joint self-acquisition of the acquirers, it will be given effect to. But the presumption is in favour of its being regarded as joint family property. ............'
In the second case, the rule indicated in Satyanarayan Agarwalla's case ILR (1959) Cut 526 was approved. According to Mr. Swain, the properties acquired under the various sale deeds excepting Ext. 27 were acquired by the two brothers jointly. Panu was working at Calcutta as found by the learned trial Judge and he was occasionally sending money to his brother Sidha. Sidha was carrying on business in molasses. Out of the funds thus created the acquisitions have been made. Therefore, the presumption indicated in the aforesaid decisions applies.
In Mulla's Principles of Hindu Law, this question has been dealt with under Note No. 228, where the following propositions have been laid down:--
'(1) Where property has been acquired in business by persons constituting a joint Hindu family by their joint labour, the question arises whether the property so acquired is joint family property, or whether it is merely the joint property of the joint acquirers or whether it is ordinary partnership property. If it is joint property of the acquirers, it will pass by survivorship, but the male issues of the acquirers take an interest in it by birth. (............) If it is the joint property of the acquirers, it will pass by survivorship, but the male issues of the acquirers do not take interest in it by birth (............). If it is partnership property, it is governed by the provisions of the Indian Partnership Act, 1932, so that the share of each of the joint acquirers will pass on his death to his heirs, and not by survivorship.
(2) If the property so acquired is acquired with the aid of joint family property, it becomes joint family property.
(3) If the property so acquired is acquired without the aid of joint family Property, the presumption is that it is the joint property of the joint acquirers, but this presumption may be rebutted by proof that the persons constituting the join family acquired the property not as members of a joint family, but as members of an ordinary trade partnership resting on contract, in which case the property will be deemed to be partnership property.
In the absence of any proof of partnership, property jointly acquired by the members of a joint family without the aid of joint family property is, as stated above, to be presumed to be joint. But is it also to be presumed to be joint family property It was at one time held by the High Court of Bombay that property jointly acquired, without the aid of joint family property was not joint family property and that the male issues of the joint acquirers did not acquire an interest in it by birth, unless it was thrown into the common stock, in later cases, however, it has been held that such property must be presumed to be joint family property, and this has been followed in Lahore, Nagpur and Oudh, In Madras it has been held that property so acquired must be presumed to be joint family property unless the acquirers intended to hold the property as co-owners between themselves in which case it would be their joint property.'
On the aforesaid basis it would follow that in the instant case though the acquisitions have been made by Panu and Sidha jointly, in the absence of any intention to the contrary these acquisitions must be treated as joint family property. I would accordingly reverse the finding of the learned trial Judge on this score. It must be made clear that the purchase under Ext. 27 stands on a different footing. It is in the name of a single member and the presumption indicated above does not apply. I would accordingly hold that the property under Ext. 27 is not joint family property. The other items in C Schedule property must be taken to be properties belonging to the joint family.
8. The appeal must accordingly succeed in part and the enhanced share in the C Schedule property (except purchase under Ext. 27) decreed by the learned trial Judge in favour of the plaintiffs must stand vacated. On partition of B and C Schedule properties, plaintiffs would be entitled to the same share as in B Schedule. The preliminary decree be modified accordingly. Parties are directed to bear their own costs in this Court.