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Gava Dei and anr. Vs. Gangadhar Mallik and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 31 of 1975
Judge
Reported inAIR1978Ori107
ActsHindu Law
AppellantGava Dei and anr.
RespondentGangadhar Mallik and ors.
Appellant AdvocateB.K. Pal, ;B. Pal, ;N. Prusty and ;Ashok Mohanty, Advs.
Respondent AdvocateP. Kar, Adv.
DispositionAppeal partly allowed
Cases Referred(Budhia v. Raghu
Excerpt:
.....co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is well settled that when acquisition is made in the name of a coparcener of a joint family having sufficient nucleus, there is a presumption that the properties standing or acquired in the name of that male member are joint family properties. whatever property they acquire by inheritance or gift is their separate estate, and although it is not unusual for property to be transferred to the name of a female member to protect it from the creditors of the male members, or to place it beyond the risk of extravagance on the part of the male members, such dealings are exceptional and..........partition deed dated 16-8-1965 (ext. e) is void; and for partition of his 7/36th share out of the suit properties described in lots 1 to 10 of the plaint schedule.4. defendants 1, 2, 3 and 9 only contest the suit apart from denying the plaint case in its entirety, they further allege that in 1346 sal (corresponding to 1939), there was a mutual partition amongst the children of nari, and a partition deed had been written and signed by the plaintiff and some of the defendants in this suit, and the parties to the suit were in possession of the properties in accordance with the agreed allotments made by themselves in that partition deed. it was further alleged that defendant no. 1 was not the karta of the family and that the properties mentioned in lots nos. 9 and 10 of the plaint schedule.....
Judgment:

S. Acharya, J.

1. Defendants 1 and 9 have preferred this appeal against the decision of the court below confirming the decision of the trial court.

2. The relationship of the parties will be seen from the genealogical table given below:--

NARI MALIK (died in 1945)

____________________|__________

| |

1st wife 2nd wife Gurubari (died in 1967)

______|______ |

| | |

Juja (D.1) Laxman |

= Gave del = Rupa |

(D.9) (D.3) |

|

Purusottam |

(D.2) |

____________________________|________________________________

| | | | | |

Budhi Madhu Gangadhar Khetra Dhukhi Jhuma

(D.4) (D.5) (Plff.) (D.6) (D.8) (D.7)

In the written statement filed by defendants 1, 2 and 9 it was claimed that Purusottam shown in the genealogical tree had been adopted as the son of Laxman.

3. The plaintiff's suit is for declaration that Purusottam had not been adopted by Laxman; the partition deed dated 16-8-1965 (Ext. E) is void; and for partition of his 7/36th share out of the suit properties described in lots 1 to 10 of the plaint schedule.

4. Defendants 1, 2, 3 and 9 only contest the suit Apart from denying the plaint case in its entirety, they further allege that in 1346 Sal (corresponding to 1939), there was a mutual partition amongst the children of Nari, and a partition deed had been written and signed by the plaintiff and some of the defendants in this suit, and the parties to the suit were in possession of the properties in accordance with the agreed allotments made by themselves in that partition deed. It was further alleged that defendant No. 1 was not the Karta of the family and that the properties mentioned in lots Nos. 9 and 10 of the plaint schedule (hereinafter referred to as 'Schedules 9 and 10 properties') were not acquired out of the joint family income but were acquired by defendant No. 9 out of her own Stridhan funds. Again in 1965 a registered partition deed (Ext. E) was executed by all the parties to the suit in order to settle all dissensions and disputes between the parties to the suit regarding their ancestral properties.

5. Both the courts below have held that defendant No. 2 (Purusottam) was not adopted as a son by Laxman; the Schedules 9 and 10 properties are not the separate properties of defendant No. 9; and that the registered partition deed of 1965 (Ext. E) cannot be set aside in view of Article 59 of the new Limitation Act. The allotment of shares made by the trial court not being very clear the same was clarified by the appellate court.

6. Mr. Pal, the learned counsel for the appellants, could not assail the concurrent findings of the courts below that the properties described in lots 1 to 8 of the plaint schedule are the joint family properties of the parties to this suit. Mr. Kar, the learned counsel for the respondents, could not assail the findings of both the courts below that the partition deed of 1965 (Ext. E) cannot in any way be assailed in this suit as the prayer to that effect is barred by limitation as per Article 59 of the new Limitation Act. Accordingly, the decision of the court below, so far as it relates to allotment of the suit properties described in lots 1 to 8 of the plaint schedule, has to be confirmed and the parties including defendants 2 and 3 would get their shares in those properties as per allotments made in their favour in Ext. E.

7. The finding of the court below that the Schedules 9 and 10 properties are the joint family properties of the parties is challenged by Mr. Pal, the learned counsel for the appellants. In arriving at that finding both the courts below have taken into consideration the presumption which applies to a property acquired in the name of a male member of a joint family having adequate nucleus to purchase such a property. Mr. Pal contends that the courts below were not justified to draw that presumption in this case as these properties were acquired in the name of defendant No. 9, the wife of defendant No. 1. According to Mr. Pal, the presumption which arises in the case of acquisition of properties in the names of male members of a joint family having adequate income would not apply to acquisitions made in the names of female members of such a joint family. True it is that the courts below while considering this aspect of the matter were not justified in utilising the said presumption which does not arise in this case. It is well settled that when acquisition is made in the name of a coparcener of a joint family having sufficient nucleus, there is a presumption that the properties standing or acquired in the name of that male member are joint family properties. That presumption will arise so long itis not shown that the said properties are the separate properties of that particular member. But there is no such presumption in the case of acquisitions made in the names of female members of the joint family. In Reghavacharir's Hindu Law, 5th Edition, at page 283 Foot Note 189 it has been said on reference to some decided cases that the presumption that property in the name of a coparcener is joint family property is inapplicable where that property stands in the name of a female member of the joint family.

In the case reported in (1885) ILR 8 Mad 214 at page 218 (Narayana v. Krishna) it has been held:--

'There is not, so far as we are aware, any case in which it has been held, that, where property stands in the name of a female member of a Hindu family, it is to be presumed that it is the common property of the family, and that it is incumbent on a person who asserts that it is the property of the lady in whose name it stands to prove it. Nor is there any ground on which such a presumption could be founded. Where a family lives in coparcenary, the presumption which exists in the case of male members arises from the circumstance that they are coparceners. On the other hand, the ladies are not in an undivided family coparceners; whatever property they acquire by inheritance or gift is their separate estate, and although it is not unusual for property to be transferred to the name of a female member to protect it from the creditors of the male members, or to place it beyond the risk of extravagance on the part of the male members, such dealings are exceptional and can afford no ground for a general presumption.'

In Para. 18-A of the case reported in AIR 1969 Mad 329 (Nagayasami v. Kocbadai) it has been held:--

'There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the female members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the names of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party who claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence, If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property stands must be held to be the beneficial owner of the property in question.'

In Para 12 of the decision reported in AIR 1973 Orissa 85 (Budhia v. Raghu) it has been held:--

'x x x In the case of male members of a joint family there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the names of individual members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the names of female members. In the latter case, it is for the party who claims properties as joint family properties to establish the same by adducing necessary evidence. If such party adduces no evidence or the evidence adduced by him is not satisfactory, the female member in whose name the property stands must be held to be the owner of the property in question'

In view of the above settled law on the point the courts below are entirely wrong in holding that the Schedules 9 and 10 properties are joint family properties, as the joint family had sufficient ancestral nucleus from which the same could have been acquired. Mr. Kar, the learned counsel for the respondents fairly concedes the above position of law But he submits that in this case it is established on the evidence on record that the said properties were acquired from the income of the joint family in the hands of defendant No. 1, the Karta of the family, and that defendant No. 9 did not have any means to acquire the said properties at the time when the same were acquired. In support of his above submission he has drawn my attention to certain facts appearing in the evidence on record which justify his above submission, In paragraph 4 of the plaint it has been specifically stated that defendant No. 1 was the Karta of the joint family and that out of the joint family funds defendant No. 1 purchased the properties described in lots 9 and 10 of the plaint schedule in the name of his wife, defendant No. 9. It is further stated in the said paragraph that ever since the acquisition of the said properties they were being jointly possessed by all the brothers of the plaintiff, and they alone considered the same as their joint family properties. These properties were purchased under registered sale deeds Exts. A, B, C and D. In Ext. A dated 9-4-1943 it is stated that the consideration money of Rs. 20/- was paid by defendant No. 1. In Ext. D dated 30-3-1953 it is also stated that the consideration money of Rs. 100/- was paid by defendant No. 1. In Ext, C dated 26-3-55 it is stated that the consideration money of Rs. 600/- was paid by defendant No. 1 from out of the Stridhan of defendant No. 9. Details or particulars about that Stridhan have not been stated in that sale deed, nor is there any convincing evidence that defendant No. 9 had any Stridhan property from which Rs. 600/- could be utilised for purchasing the property under Ext. C. The courts below have held that defendant No. 9 did not have any Stridhan property of her own. Defendant No. 9 is an illiterate lady and was young at the time of the acquisition of the said property. There is no evidence to show that she had any fish business of her own. Her case of independent income from out of money-lending business, from lands given to her by her parents and from sale of fish has been disbelieved by both the courts below as baseless. Accordingly, it is difficult to believe that Rs. 600/- paid by defendant No. 1 for purchasing the property under this sale deedwas out of the Stridhan property of defendant No. 9. From the fads and circumstances it appears that the statement: in Ext. C regarding payment of consideration from out of the Stridhan of defendant No. 9 was made just to show that these properties were not purchased from out of the money in the hands of defendant No. 1 (who was the Karta of the family).

On the evidence on record it appears that different portions of the properties purchased under Exts. A, C and D were being separately possessed by different parties to the suit It has been found by both the courts below that Nari's family had sufficient nucleus to acquire the above-mentioned properties. All the above acquisitions are old acquisitions and it would be unrealistic to expect any party to lead direct evidence of acquisition of the said properties from out of the joint family nucleus. '

Though the courts below were not justified in utilising the above-mentioned presumption while discussing this aspect of the matter, the finding on this aspect is not merely based only on the said presumption. Apart from the said presumption, both the courts below have also taken into consideration other facts to arrive at the said finding. On considering the above and other facts and circumstances on record, I am satisfied that the aforesaid properties purchased under the sale deeds Exts. A, C and D were all acquired out of the joint family nucleus, and that being so, these properties are liable to be partitioned amongst the members of the family in accordance with their shares to which they are entitled in law.

8. The property acquired under Ext B was purchased for Rs. 200/-. In this sale deed it is not stated as to who actually paid the consideration money. There is nothing in Ext. B, nor is there any evidence to show that the consideration money for purchasing the said property was paid by defendant No. 1, or that the same was purchased out of the income of the joint family properties.

From the evidence on record it appears that defendants Nos. 1 and 9 have constructed a house on the property purchased under this sale deed. The plaintiff in his deposition states that if any such house is in existence on the said land, then he has no claim over the same. From time above facts and in the absence of anything definite or specific to show that the said property was purchased from out of the income of the joint family properties and in view of the fact that thesaid property was sold to defendant No. 9 and it stands recorded in her name, it cannot be held that the said property was purchased from the joint family nucleus. So, the property purchased under Ext. B cannot be partitioned amongst the parties to the suit, and has to be exclusively allotted to defendant No. 9 as her personal property.

In the ultimate analysis, therefore, the suit properties described in lots Nos. 1 to 8 of the plaint schedule shall be divided amongst the parties to the suit including defendants 2 and 3 strictly in accordance with the allotments made to them in Ext. E. The properties described in lots 9 and 10 of the plaint schedule, except the property purchased under Ext. B, be partitioned amongst the coparceners in accordance with law without any reference to the shares mentioned in Ext. E. Both the courts below have found that Purusottam is not the adopted son of Laxman. So in Schedules 9 and 10 properties Purusottam does not get a share as the son of Laxman, but he, being the son of Juja Malik, gets a share in the property which will fall to the share of Juja Malik. The husband of Rupa (D. 3) admittedly died in 1928. So, Rupa as conceded is not entitled to a share in the joint property, but she is entitled only to maintenance. It appears from Ext. E that she had been given Ac. 1.73 1/6 decimals of land from the joint family property. That allotment was certainly made in her favour towards her maintenance. Accordingly, Rupa is not entitled to any share in the properties described in lots 9 and 10. Other co-sharers of the joint family are entitled to the said properties, except the property purchased under Ext. B, as per their shares to which they are entitled in law. The shares of each of the co-sharers in these properties shall be worked out in accordance with law in the final decree proceeding.

While actually allotting different shares to different parties the executing court and agency should, as far as practicable, respect the possession of land and construction of houses by the different parties on the suit lauds.

9. The appeal accordingly is partly allowed. Parties will bear their own costs of this appeal.


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