R.N. Misra, J.
1. Defendants 1 and 3 to 5 have carried this appeal against the judgment and decree of the learned Subordinate Judge of Nayagarh in a suit for partition. The relationship of the parties is available from the genealogy given below :
Raghunath Ghanasyam alias
| Udayanath (Plaintiff)
| | | | |
Debraj Guna- Mohan Purna- Padmanabh
(D-1) nidhi (D-3) nanda (D-5)
Defendant No. 2 has been adopted out of the family. 'Ka' Schedule property with an extent of 4,36 acres admittedly constitutes the ancestral assets. Kha to Chha schedule properties were acquired jointly in the names of plaintiff and defendants 1, 3, 4 and 5 between 17-9-1955 and 10-12 1965 and the particulars of these acquisitions appear from a chronological statement below:--
1.17-9-1955445 decimals of land acquired for Rs. 100/ in the name of all the five from D. W. 1.
2.27-3-1957232 declmais of land (Schedule 'Kha') purchased by all the five members for a consideration of Rs. 675/-
3.5-1-1962388 decimals of land (Gha Schedule) purchased by all the five members for a consideration of Rs. 2,000/. from DW 1.
4.9-4-1965Bsome homestead land ('Una' Schedule) purchased for Rs. 400/- in the name of all the five.
5.5-8-1965Asome homestead land purchased for Rs 1,000/- in the names of all the five members from D W. 4. (des. cribed in Ohha Schedule.)
6.10-12-1965113 decimals of land in 'Chha' Schedule purchased for Rs. 200/- in the names of all the five members from D.W. 3
Plaintiff claimed half share in the 'Ka' schedule property as also in the properties described in 'Kha' to 'Chha' schedules on the allegation that the acquired property had been purchased out of joint family nucleus,
2. There was no dispute from the side of the defendants about the plaintiffs moiety share in the 'Ka' schedule property. They, however, maintained that in the six items of acquired property each of them, i. e. plaintiff, defendants 1, 3, 4 and 5 had one-fifth share and they had no objection to plaintiff getting partition of his share on such basis. They pleaded that each of them had contributed towards the consideration of the acquired property and they relied upon a Panch Faisala (Ext. C) dated 28-7-1967 in which plaintiff had accepted one-fifth share of each of the defendants in these properties.
3. At the trial, plaintiff examined himself as P. W. 5 and five more witnesses in support of his stand. Defendants examined 6 witnesses also including defendant No. 1 (D. W. 6). They examined the vendor of Exts. 3 and 4 as D.W. 1, the vendor of Ext. 1 as D. W. 3 and the vendor of Ext. A as D. W. 4. They also proved Ext. C by examining D. Ws. 2 and 5.
4. The learned Trial Judge, however, did not accept the claim of one-fifth share by each of the defendants in the acquired property and on a finding that defendants had failed to prove that joint family nucleus had not been utilised for acquisition of these properties, he accepted plaintiff's claim of a moiety share therein. Defendants have carried this appeal against thesaid decree.
5. Mr. Pal for the appellants concedes that there is no dispute in regard to the ancestral 'Ka' Schedule property and reiterates the claim of the defendants to one-fifth share in the acquired properties covered by 'Kha' to 'Chha' schedules. As already indicated, these properties were acquired under six separate sale deeds between 17-9-1965 and 10-12-1965. Of these, the acquisitions under Exts. A and B are homestead property and the rest are cultivable lands.
6. The legal position is well settled that property standing in the name of individual members of a joint family would not constitute joint family property. One who asserts that such property takes the character of joint family asset has to show that the joint family had sufficient nucleus available for acquisition of the property and on such fact being proved, the burden shifts on to the individual member claiming the property to be his self-acquisition to show that joint family nucleus was not utilised for the acquisition. The learned Subordinate Judge clearly went wrong in placing the burden on the defendants to prove the fact of non-availability of nucleus. It was for the plaintiff to plead and prove that the family had surplus joint family nucleus which was available for utilisation as consideration for the sale deeds. The joint family property was a little more than four acres of land. The joint family had many members. The evidence regarding income of the joint family property is very meagre. In fact many of the plaintiff's witnesses have clearly admitted that they have no knowledge about it. Even if the entire evidence of the plaintiff beaccepted, it leads to the position that one cart-load of paddy remains surplus after meeting the family requirement. There is no evidence as to what would have been the price of one cartload of paddy so as to find out the surplus assets of the joint family property year to year so as to provide sufficient nucleus for acquisition. On this analysis we must hold that the plaintiff has failed to establish availability of joint family nucleus which could constitute the considerations for the acquisitions. As already indicated, the money spent for the acquisitions was about Rs. 4,400/-. It is difficult for us to hold that the joint family had that nucleus in the course of the period of ten years.
7. D. Ws. 1, 3 and 4 have categorically proved that the vendees, i. e. five of the members of the family, had contacted them for the respective purchases and these members separately paid their shares of the consideration and it had been stipulated that they would be co-purchasers. D. W. 1 who is the vendor of two sale deeds being Exts. 3 and 4 has categorically stated:--
'..... .In the said sale deed (Ext. 4)there were five vendees and each of them had 1/5 share in the said land and each of them paid Rs. 20/- towards consideration money. The plaintiff paid Rs. 20/- towards his share.'
Similarly, with reference to Ext. 3, he has stated :--
'About 8 years back, I sold them the 'Cha Schedule land for Rs. 2,000/- by registered sale deed in which in similar manner each of the said vendees had 1/5 share and accordingly they paid Rs. 400/-each towards the consideration money. The plaintiff paid Rs. 400/- towards his share.All the vendees paid me the consideration money and I gave them possession of the said lands.'
In cross-examination, he has further stated :--
'All the vendees prior to such purchase talked with me that each of them will have equal share in said purchased lands and accordingly they will pay their shares of contribution........'
D. W. 3, being the vendor of Ext. 1, has stated:--
'........ All the vendees were presentwhen that sale deed was executed and registered. They purchased said land in five equal shares. Out of the consideration money, plaintiff paid me Rs. 40/- and defendants paid Rs. 160/-. I delivered possession to them.'
D. W. 4, the vendor of Ext. A, has stated :--
'About 5 years back myself and Laxman Baral sold the 'Cha' schedule land to plaintiff and defendants except defendant No. 2 for Rs. 1,000/- by a registered sale deed. The defendant No. 1 attended when that sale deed was executed and registered. I cannot say what was the extent of share of each of the vendees in that purchased land. .'........'
Reliance has been placed on the evidence of D. W. 4 by Mr. Mohanty for the plaintiff-respondent for his contention that the statement in Exts. A and B that each of the members had one-fifth share had been manipulated into the document at the instance of defendant No. 1. Defendant No. 1 has been examined as D. W. 6. It has been suggested to him in cross-examination that he had interpolated subsequently the statement into Exts. A and B relating to specific share of each of the purchasers. A reference to the sale deeds does not show that the statement was incorporated into the two sale deeds subsequently. It is not the plaintiff's case that defendant No. 1 alone was looking after the acquisition of the properties so as to get an opportunity of incorporating a statement to the prejudice of the plaintiff. In these circumstances, we do not think, the stand of the plaintiff that the statement in Exts. A and B that each of the purchasers has equal share is an interpolation or that it had been so stated in the documents at the instance of defendant No. 1, is acceptable.
Ext. 6 is a sale deed by plaintiff and some of the defendants selling admittedly joint family property for Rs. 2,000/-. Therein, the necessity for the sale has been stat-ed to be to pay up the loan made for purchase of joint family homestead. On the basis of this statement and the evidence of D. W. 4 it has been claimed by Mr. Mohanty that the consideration money under Ext. A came out of the sale proceeds of Ext. 6. Ext. A is dated 5-8-1965 while Ext. 6 is dated 20th of July, 1966, the time-lag is about eleven months. D. W. 4 has clearly stated that four months after executing Ext. A, the consideration money had been received. In the circumstances, it becomes difficult to hold that the consideration for Ext. A came out of the sale proceeds of joint family lands under Ext. 6.
8. Section 45 of the T. P. Act provides :--
'........ In the absence of evidence asto the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.'
This being the legal position, if the plaintiff could not establish as to what was the fund out of which the consideration money had been paid, and what share in that fund each of the parties had, the legal presumption has to work.
9. Added to these, is an admission of the plaintiff under Ext. C that in the acquired property, each of the five members had equal share. Ext. C is a Panch Faisala dated 28-7-1967. Admittedly the document required registration and being an unregistered document cannot be utilised as a document surrendering interest. The genuineness of the document has been proved beyond doubt. Even plaintiff, as P. W. 5, has stated:--
'....... I never agreed in said Panchayat that I have 1/5 share in said purchased land. In that Panchayati this paper marked Ext. C was written in which I have signed........'
D. Ws. 2 and 5 have proved that plaintiff voluntarily signed in the document after understanding the contents. From the narration of Ext. C it appears that the name of the plaintiff was not appearing in some of the revenue records and in terms of the document, defendants admitted plaintiff's one-fifth share and agreed to plaintiff being recorded in respect of such share. Even if Ext. C may not operate as a document of title, it is certainly an acknowledgment of a fact and as a previous statement of the plaintiff it can be utilised. It corroborates the defence version.
10. In view of this state of the materials on record, we are inclined to agree with the submissions of Mr. Pal for appellants that in the property acquired under the six sale deeds plaintiff and each of the four defendants being defendants 1, 3, 4 and 5 have one-fifth share. The decree of the trial Court allowing a moiety share to the plaintiff in the 'Ka' schedule property is affirmed. So far as 'Kha' to 'Chha' schedule properties are concerned, i. e. in regard to the acquisitions under the six sale deeds indicated above, plaintiff and each of defendants 1, 3, and 5 have one-fifth share. Plaintiff is, therefore, entitled to a preliminary decree for partition in regard to one-fifth share in these acquired properties. The appeal succeeds to that extent and the preliminary decree is accordingly varied. We make no order for costs.
P.K. Mohanti, J.
11. I agree.