B.K. Patra, J.
1. This is an appeal bydefendants 1. 3 and 4 and arises out of a suit filed by the plaintiff (Respondent No. 1) for partition of the plaint A & B Schedule properties into three equal shares and for recovery of possession of one such share together with mesne profits from 1956. The following genealogical table will show the relationship between the parties.
| | | | |
Budhia Mongulu Raghu Hadi Puni
(D.1) =Jhata (D-6) (Plff.1) Khuntiani (not a deft.)
| | | |
1 Domi (D.3) Kalu (died) (Dandia D.2) (Bhima etc.
| (Adopted by D.1) =married Kami)
married to Bhimi
| | | |
Bhaskar (D.5) Khalli Balaram A boy.
2. It is the plaintiff's ease that his father Gandua Mandal died long ago leaving behind him his widow, three sons, and two daughters. He also left behind him a residential house and about 8 acres of land besides cash and other moveables. The' plaintiff and his two brothers used to go to Burma and earned substantial sums of money. From out of the money so earned and the income from the joint family lands, new properties were being acquired in the name of defendant No. 1 who being the eldest of three brothers was the Karta of the joint family. Thus, in course of time, properties mentioned in plaints A and B schedules were acquired. As defendant No. 1 had no son of his own, he had adopted Dandia (defendant No. 2) the son of the plaintiff. About 11 years before the institution of the suit, the three brothers began 40 have separate messing but the properties remained joint. Some time thereafter. Mangulu died leaving behind him his widow Jhata (defendant No. 6) and a son Kalu. Kalu subsequently died leaving behind him his widow Khalli (defendant No. 7). Sometime in the year 1956, the plaintiff demanded partition by metes and bounds of the joint family properties but being instigated by his daughter defendant No. 4 and her husband, defendant No. 1 refused to partition all the joint family properties claiming most of them as his self-acquisitions. Since 1956, he also failed to give to the plaintiff his share of produce from the joint family properties, consequently the plaintiff was obliged to file the suit for partition. Defendants 8 to 18 were added as parties to the suit as they are alienees of some of the joint family properties from defendant No. 1. It is also alleged in the plaint that certain unauthorised alienations of joint family properties have also been made in favour of defendants 3 and 4 by defendant No. 1.
3. Defendant No. 1 In his written statement denied having ever adopted defendant No. 2. According to him. his father Gandua Mondal had only 1.80 acres of land. During the minority of Mangulu and the plaintiff. defendant No. 1 was going to Burma and was sending money to his father and with such earnings Gandua Mondal had purchased about 5.20 acres of land. Sometime in 1926 defendant No. 1 separated from his father. His father died about two years later and by that time, the family had only 33 bharans of land and 3 houses. Out of these, the ancestral property consisted of only 1.80 acres of land which was not yielding sufficient income even for the maintenance of the family. The remaining lands were purchased by Gandua only out of the earnings of defendant No. 1 at Burma. In spite of this, defendant No. 1 was willing to allow legitimate shares to his two brothers out of these properties. A partition was effected sometime in the year 1930. In the said partition. 3.30 acres of land were allowed to defendant No. 1 in excess of the shares of his two brothers on the following account:--
1.20 acres for undertaking to discharge the family debts.
0.80 acres of land as Jyesthansa
0.60 acres of land which defendant
No. 1's wife deft. No. 3 had purchased from Gandua.
0.70 acre of land which Gandua had gifted to defendant No. 4. The rest of the lands were divided into three equal shares amongst defendant No. 1 and his two brothers the plaintiff and Mangulu each brother getting about 12 bharans of land. After the said partition. defendant No. 1 acquired several other properties in his own name. He has 'executed a registered Will in favour of his daughter Kami (defendant No. 4) in respect of items 19 to 21. 24. 25 and 27 to 30 of the plaint 'A' schedule. He has also executed a deed of gift in favour of his grandson Bhaskar (defendant No. 51 and has also sold some items of land from out of the said acquisitions to defendants 8 to 18. It is further stated by defendant No. 1 that his wife defendant No. 3 has purchased items 2. 6 and 32 of the plaint 'A' schedule and that his daughter defendant No. 4 had purchased items 1, 3, 39 and a portion of item 33 of the plaint 'A' schedule and item No. 4 of the plaint 'B' schedule from out of her own income and that, consequently these properties should be excluded from partition.
4. Defendants 3 and 4 filed a separate written statement supporting the stand taken by defendant No. 1.
5. The alienees defendants 8, 9 and 13 to 18 filed a written statement contending that their vendor defendant No. 1 was separate both in mess and property since the last about 30 years and that while he was so separate from his other brothers he had alienated from out of the plaint 'A' Schedule properties items 36 and 37 to defendant No. 8, item No. 45 to defendant No_ 9, item No. 7 to defendant No. 18 and 7 cents of house site from out of item No. 33 to defendant No. 13.
6. Defendants 2 and 6 and 7 filed separate written statements supporting the plaintiff's case.
7. Defendants 11 and 12 pleaded that for legal necessity of the family defendant No. 1 had alienated certain properties in their favour and that consequently it is binding on the entire family.
8. The learned Subordinate Judge who tried the suit disbelieved the plain-jiff's case that defendant No. 2 was adopted by defendant No. 1. He rejected the plea of defendants 1, 3 and 4 that there was a prior partition between defendant No. 1 and his two other brothers. He found that items 2, 6 and 32 of the plaint 'A' schedule are not the personal properties of defendant No. 3 and that items 1. 3, 33 and 39 of the plaint 'A' schedule and item No. 4 of the plaint 'B' schedule are not the personal properties of defendant No. 4. He found that there was no sale of 60 cents of land in favourof defendant No. 3 by Gandua and that he never gifted 0.70 acre of land to defendant No. 4. Holding further that the joint family properties were yielding sufficient income, he came to the conclusion that properties acquired in the name of defendant No. 1 do not belong to him exclusively but are joint family properties. It was found by him and it is no more in dispute that during the pendency of the suit defendant No. 7, the daughter-in-law of Mangulu was given in marriage to some other person and that consequently she lost whatever rights she had in the suit properties. In the result, the trial Court held that the plaint 'A' and 'B' schedule properties are joint family properties and directed partition of the same into three equal shares and to allot a share each to the plaintiff defendant No. 1 and defendant No. 6. He further directed that in making partition, lands covered by Exts. A-1 to G-1 be allotted to the share of defendant No. 1 so that those defendants who had purchased these properties from defendant No. 1 can retain possession of the same.
9. Being aggrieved by this decision, defendants 1, 3 and 4 have filed this appeal. In so far as the decree did not direct recovery of mesne profits which the plaintiff had claimed, he filed a memorandum of cross-obiections claiming the same.
10. In support of his case that there was a prior partition sometime about the year 1930, defendant No. 1 relied on the following circumstances: It is admitted in the plaint itself that 11 years before the institution of the suit. the parties have separated in mess. The plaintiff had admitted in Court that towards 2 to 3 years prior to the institution of the suit, the parties were separately cultivating their lands and were storing their paddy in different thrashing floors. P. W. 2 had deposed that, he had been seeing the distribution of paddy amongst the parties for the last about 40 years. There is evidence to show that the family had two residential houses --one the ancestral house and the other popularly referred to as the tinned house which was acquired in the names of the three brothers and that while defendant No. 1 was living in the ancestral house, the two other brothers were residing in the tinned house. Exhibits 'A' and 'A-1' which are certified copies of two sale deeds executed in the year 1935 show that Mangulu had in the year 1935 purchased some properties in his own name. As against this, there are Exts. C-2 to C-4 which are settlement record of rights in respect of a major portion of the lands described in the plaint 'A' Schedule. These Khatians which are of the year 1953 show that these lands were record-ed jointly in the names of the three brothers the plaintiff, defendant No. 1 and Mangulu. Even the shares of the three brothers have not been specified and the rents have not been apportioned. If, as alleged by defendant No. 1, the brothers had separated from one another from 1930 and had divided their properties, it is not explained how in the year 1953, the properties could be jointly recorded in their names without even apportionment of shares. The inference of jointness which follows from these facts cannot be outweighed by the mere fact that the brothers were separate in mess and residence and that they were separately cultivating different portions of the family lands. I. therefore, do not see any sufficient justification to interfere with the finding recorded by the learned Subordinate Judge that defendant No. 1 failed to prove that there was ever any partition by metes and bounds of the joint family properties,
11. The learned Subordinate Judge had disbelieved the plaintiff's case that defendant No. 2 had been adopted by defendant No. 1 and the correctness of this finding has not been challenged before me.
12. The main controversy in this case centres round the question as to whether the several properties mentioned in plaint 'A' and 'B' schedules are joint family properties or whether some of them are the self-acquired properties of defendant No. 1. defendant No. 3 and defendant No. 4. It is the plaintiff's stand that since defendant No. 3 is the wife of defendant No. 1 and defendant No. 4 is his daughter, and if it is held that there was never any partition between defendant No. 1 and his brothers, it must be held that although some of the properties had been acquired in the name of defendant No. 1 and some in the name of defendant No. 3 and some in the name of defendant No. 4, they are all joint family properties. What is urged is that defendant No. 1 happened to be the Karta of the family, and he had with a view to defraud the other brothers acquired with the help of the joint family nucleus, properties some in his own name and some in the names of his wife and daughter. An attempt was made in the trial Court by defendant No. 1 to establish that he had purchased the several properties standing in his name by raising loans and has in support thereof produced a number of promissory notes Ext. F series. But none of the alleged creditors had been examined either to prove these promissory notes or to show that they had actually advanced loans to defendant No. 1 with a view to enable him to purchase the properties. It has also not been established that apart from the income which was beingderived from the family lands defendant No. 1 had any independent source of income with which he could have purchased properties. The learned Subordinate Judge after discussing the evidence has come to the conclusion, and the correctness thereof has not been seriously questioned before me. that the joint family possessed sufficient properties from the income of which other properties could have been acquired. Such being the circumstances, if any member of the family claims any portion of the properties as his separate property, the burden would lie upon him to show that it was acquired by him in circumstances which would constitute it his separate property. What, however, the learned Subordinate Judge overlooked is that there is 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 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 this category would fall the properties covered by Exts. B, B-l. B-3 and B-6. Ext. B is a sale deed dated 19-1-1942 under which defendant No, 3 had purchased 11 cents of Padar lands from one Tabhi Padhanuni an outsider for a consideration of Rs. 33/-. Ext. B-1 is a sale deed dated 27-7-1942 under which defendant No. 3 purchased 11 Noutis of land from Ramchandra Nahak an outsider for a consideration of Rs. 46.12.0. There is no evidence on behalf of the plaintiff to show that defendant No. 3 had no capacity to advance these petty amounts with which she made the purchases. Ext. B-3 dated 10-6-1953 is a sale deed under which defendant No. 4 the daughter of defendant No. 1 purchased certain lands from one Juria Roul an outsider for RS. 50/-. On 14-8-1954, defendant No. 4 purchased under the sale deed Ext. B-6 some lands from one Gobinda Kayak. Defendant No. 4 al-though a daughter of defendant No. 1 is not a member of the joint family consisting of defendant No. 1 and his brothers. There is no evidence to show that she was not possessed of sufficient funds with, which she could have made the purchase. In the circumstances, the land? covered by Exts. B, B-1, B-3 and B-6 cannot be held to be parts of the joint family properties belonging to defendant No. 1 and his brothers,
13. On 19-7-1954. defendant No. 1 executed a sale deed (Ext. B-5) in favour of his daughter defendant No. 4 and on the same day he executed a deed of gift (Ext. B-4) in favour of his daughter. It has not been shown that there was any legal necessity for defendant No. 1 to sell the lands covered by Ext. B-5. These two alienations cannot therefore be supported and it must follow that the lands covered by Exts. B-4 and B-5 still continue to be joint family proper-ties available for partition. Ext. B-2 is a sale deed dated 5-6-1946 for a consideration of Rs. 200/- executed by one Krushna Mondal in favour of defendant No. 4. This being a purchase by defendant No. 4 from an outsider would have stood on the same footing as Exts. B, B-l, B-3 and B-6. But Ext. B-2 shows that the vendor Krushna Mondal had purchased this property from defendant No. 1 Budhia Mondal. According to the plaintiff [P. W. 1) the sale of this land by Budhia to Krushma was a nominal one and was resorted to only to make ft appear that the sale by Krushna Monlal to defendant No. 4 was a real one. It has not been shown that Budhia had any legal necessity to sell the property covered by Ext. B-2 to Krushna. Consequently. the joint family is not bound by the transaction.
14. The result, therefore, would be that the properties covered by Exhi-bits B; B-l. B-3 and B-6 should be excluded from partition and the rest of the properties covered by Schedules 'A' and 'B' should be divided into three equal shares and one such share allotted to the plaintiff, one share to defendant No. 1 and the remaining share to defendant No. 6. It is conceded that defendant No. 7 by virtue of her remarriage is not entitled to any share in the suit properties. While making the partition, the properties covered by Ext. B-2 should be formally allotted to the share of defendant No. 1 to enable defendant No. 4 to enjoy the property. The appeal filed by defendants 1. 3 and 4 would succeed only to the extent indicated above.
15. There then remains the memorandum of cross objections filed by the plaintiff. The plaintiff in para. 6 of the plaint besides claiming partitionof all the properties mentioned in Schedules 'A' and 'B' of the plaint into three equal shares and to put him in possession of one such share also prayed--
'for account and mesne profits since 1956 Margasir of paddy mung and biri crops onwards and also for future mesne profits till actual possession of the plaintiff's share in joint family properties is given to the plaintiff.'
The suit was instituted on 22-12-1962, Law is now well settled that in a suit for partition filed by a member of a Hindu Mitakshara joint family, the coparcener seeking for partition is not entitled to require the manager to account for his past dealings with the property. All that he is entitled to is an account of the family property as it exists at the time when the partition is demanded, unless of course there is proof of fraud or other improper conversion on the part of the Karta. One of the exceptions to the general rule is when the coparcener suing for partition is entirely excluded from the enjoyment of the joint family property in which case he Is entitled to an account of the income derived from the family property and to have his share of the income ascertained and paid to him. The reason behind this rule is that when the family is joint, the Karta manages the family property and the income thereof is spent for all the coparceners and consequently on such a case the question of account does not arise in respect of the income derived from the family property prior to partition. But when it is established that one of the coparceners is entirely excluded from enjoyment, the above rule would arid should not apply and the coparcener concerned is entitled to an account of the profits received from the joint family property. This is the case where the properties in respect of which the partition is sought are admittedly joint family properties. There may be cases where the managing coparcener does not admit that some of the properties in respect of which partition is sought are joint family properties and claims them to be his own. If he succeeds in that contention, there is nothing else to be done. But if the contention fails and some of the properties which he claims to be his self-acquired properties are proved to be joint family properties, he has the liability to render an account of the profits received by him from such properties. This is so because in view of the manager's claim that they are his self-acquired properties, he would not have made the income therefrom available for being Spent for the joint family.
16. In the present case, the defendant No. 1 has stated in para. 4 ofthe written statement that a partition had taken place about 30 years before the suit and that in the said partition, 12 bharans of land fell to each of the three brothers which, they have been enjoying separately. Although the story of partition has been disbelieved, the plaintiff while being examined in Court stated that he and the son of Mangulu had 'each been cultivating 10 bharans of the joint family lands. In fact, his witness P. W. 2 stated that for the last 40 years, the three brothers are taking paddy from the grain pit belonging to the family in accordance with their requirements. All these circumstances go to show that so far as the admittedly joint family lands are concerned, each of the three brothers had been separately cultivating different portions of the lands which roughly correspond to his legitimate share. The question of ordering an account in respect of the income of such properties would not therefore arise.
17. The position, however, is different in respect of such of the lands mentioned in plaint 'A' and 'B' schedules which defendants 1. 3 and 4 have claimed to be their self acquisitions, but which are now found to be joint family properties. Having regard to the claim advanced by defendant No. 1 in respect of these properties, he could never have allowed the income therefrom to be spent on the joint family. In respect of such properties, therefore, defendant No. 1 is bound to render account from 1956 till the plaintiff's share therein is delivered to him. After ascertainment of the mesne profits in respect of these properties the plaintiff naturally would be called upon to pay the court-fee before the decree is drawn up. The memorandum of cross objection would succeed to the extent indicated above.
18. In the result, the appeal and the memo of cross objections are allowed in part to the extent indicated above and the preliminary decree passed by the trial Court should be modified accordingly. In the circumstances, parties will bear their own costs in this Court. Appeal partly allowed.