R.N. Misra, J.
1. Defendants have carried this appeal against the preliminary decree passed by the learned Additional Subordinate Judge of Puri in a suit for partition.
2. Parties are related in the manner indicated below:--
| | |
Bhagaban Michhu Hadibandhu
| _______________|__________ |
Padmanav | | Balf
widow Bholi Basu widow
Landi (D.1) | Suna
(P.1) (died) Nidhi (D.2)
| during |
Banadhihari suit) Kasinath
widow widow (D.2 ka)
Plaintiffs filed the suit for partition of the properties in the hotchpot alleging that there had been no partition among the three branches of which the common ancestors were Bhagaban, Michhu and Hadibandhu. With the aid and assistance of joint family nucleus several acquisitions were made and such properties have also been included in the hotchpot for partition on the footing that they were impressed with joint family character. The kha schedule property represents the moveables while the Ga schedule relates to money-lending business of the family. Plaintiffs, averred that they were beingdeprived of the benefits of the joint family properties and when they demanded partition, the same was not accepted too. Thus the suit was filed in forma pauperis asking for one-third share.
3. Bali and Bholi filed a written statement pleading previous partition among the three branches prior to 1927 when the Current Settlement Operations began. The said partition was by metes and bounds; the shares were specifically defined in the record-of-rights and in respect of many items of property specific possession also came to he noted; parties lived in separate houses; were separately assessed to choukidari taxes and have carried on their own business in money-lending with separate funds; the several acquisitions have been made in the names of the different members which are not joint family properties. It was also alleged that some of the properties included in the hotchpot belonged to the family deity and were not liable to be divided. Bali and Bholi died during the pendency of the suit but their legal representatives have adopted the written statement filed by the deceased defendants.
4. The trial court came to hold that there was no previous partition; it accepted the plaintiffs' claim that there was joint family nucleus and the defendants' claim of self-acquisition was rejected and all the properties shown in the Ka schedule were held liable for partition and plaintiffs were declared to have one-third share therein. Plaintiffs' claim for partition of moveables in Kha schedule and money-lending business as given in the Ga schedule was rejected.
5. Defendants have carried this appeal challenging the decree of the trial court. The dismissal of the suit in regard to the Kha and Ga schedule properties has become final.
6. There is no dispute before us that the burden to establish a plea of previous partition lay on the defendants who advanced that plea. Mr. Mohapatra for the appellants maintains that the cumulative effect of the materials placed before the court are sufficient for reaching a conclusion that there has been a previous partition and, therefore, the learned Trial Judge should have accepted the defendants' plea of previous partition. It is the admitted case of parties that the different branches are living separately. The Current settlement Record-of-Rights shows either ascertainment of shares of specific possession of certain items of property by different members of the family. Admittedly, there has been cessor of commensality; taxes are being separately paid;money-lending business has been separated; different members of the family have been acquiring property separately; even in the recent Settlement which is not complete, parchas show separate record. According to Mr. Mohapatra, the cumulative effect of these features certainly proves a previous partition. He relies on a passage from Mulla on Hindu Law under Article 327, where it has been said:--
'Cesser of commensality, it is stated above, is not a conclusive proof of partition; the reason is that a member may become separate in food and residence merely for his convenience. Separate residence of the members of the joint family in different places where they are in service does not show separation. Similarly, there are other acts which, though standing by themselves, are not conclusive proof of partition, yet may lead to that conclusion in conjunction with other facts. They are separate occupation of portions of the joint property, division of the income of the joint property, definement of shares in the joint property in the Revenue or Land Registration records, etc. ............'
The Judicial Committee in the case of Gangabai v. Fakirgowda Somaypagowda AIR 1930 PC 93, drew the conclusion of partition from the facts that there was separation in food and residence for a long time between the two brothers; independent transaction of property such as mortgages and leases and appropriation of the proceeds thereof to personal utilisation; description of one of the brothers as being separate in the Record-of-Rights prepared under the Bombay Land Record-of-Rights; enjoyment of the properties by the widow of one of the brothers after his death; and the entry in the Mutation Register prepared under the Bombay Land Revenue Amendment Act of 1913 in the name of the widow as the owner of the properties.
A Bench of this Court to which one of us (Hon'ble Mohanti, J) was a party in First Appeal No. 209 of 1967 (Fakir Charan Das v. Jagabandhu Das) disposed of on 1-10-1974, relied upon the observations of the Judicial Committee in the aforesaid case and quoted the following observations of Mohapatra J. in the case of Jeyakrishna Sahu v. Parameshwar Sahu (1958) 24 Cut LT 430 with approval:
'When the parties have been possessing lands separately for a long time, and further when they are exercising acts ofownership in respect of those lands, the courts of fact are competent enough to give proper weight to such circumstances and come to the conclusion of completed partition.'
7. Whether there has been a partition by metes and bounds in a given case would depend upon the facts and circumstances of that case. We agree with Mr. Mohapatra that in several cases, Courts have come to find previous partition on the basis of the cumulative effect of a definite course of conduct spread over years; treatment of the family properties, a share being given to a pre-Act widow and allowing her to be recorded as owner and the like. In the present case, the features are separate living in the same village in different unconnected houses, joint record with specification of shares and separate payment of house taxes. These features even when a cumulative view is taken are compatible with separate living for convenience and would not necessarily lead to the conclusion of previous partition. We are, therefore, not inclined to agree with Mr. Mohapatra that the learned Trial Judge has gone wrong in rejecting the defence plea of previous partition. Law presumes jointness and defendants having failed to dislodge the presumption it must be held that parties were joint on the date of the suit and plaintiffs are entitled to claim partition.
8. The next point for consideration is as to partibility of the properties acquired. Though we have found that there has not been partition by metes and bounds on the materials already dealt with by us, we are inclined to agree that there has been separation of status. Living in the same locality, the three branches separated in residence, the shares were ascertained in the Revenue papers, they started carrying on separate money-lending business, several properties were acquired in the names of different members of the family branch-wise. From the fact that such conduct has continued over a period of about forty years, we are inclined to agree with Mr. Mohapatra that there has been separation of status among the three branches.
The next aspect for consideration is as to when this separation took place. In para 7 of the written statement, partition has been pleaded to be an event prior to 1927. What defendants had contended to be a partition by metes and bounds, in our view, seems to be really one of separation of status. D. W. 2 in cross-examination stated that he had heard about effecting of separation about fifty years prior to his deposition which would fix the date sometime in 1919. D. W. 2 was aged about 48 by the time of his examination in court and would not be competent to depose about events taking place fifty years before. The defendants having not clearly indicated any other date than what has been pleaded in the written statement we are inclined to agree that separation of status took place in the year 1927 prior to the final publication of the Current Settlement Record-of-Rights.
The acquisitions are eighteen in number beginning from 14-6-1921 (Ext. C/14) and ending with a sale deed dated 1-8-1955 (Ext. A/2). In view of our finding that separation took place in 1927, there would be four acquisitions which would be before the event of separation and the particulars of these are:--
(1) Sale deed dated 14-6-1921 in respect of 59 decimals in the name of Bholi Misra for a consideration of Rs. 50/- (Ext. C/14).
(2) Sale deed dated 6-2-1922 in favour of Padmanava Misra in respect of 1.14 acres of land for a consideration of Rs. 50/- (Ext. A).
(3) Sale deed dated 19-4-1922 in favour of Bholi Misra in respect of 39 decimals of land for a consideration of Rs 50/-(Ext. C/1).
(4) Sale deed dated 12-6-1925 in favour of Bholi Misra in respect of 31 decimals of land for a consideration of Rs. 33 (Ext. C/7).
It has been pointed out in the case of M. N. Aryamurthi v. M. L. Subbaraya Setty, AIR 1972 SC 1279, that the effect of severance in status in a Hindu joint family is that members become tenants in common and subsequent acquisitions by a member even with joint funds in his possession would belong to him alone and other members would not be entitled to claim a share therein. That being the position, the other acquisitions after 1927 would not be impressed with joint family character and, therefore, be not liable to partition.
We will, therefore, confine our consideration in respect of the four sale deeds enumerated above. Three of these sale deeds are in favour of Bholi who according to D.W. 1 was the Manager of the family till his death and the other sale deed is in favour of Padmanava of plaintiffs' branch. The total consideration money for these sale deeds is Rs. 183/-. The question for consideration is as to whether these four acquisitions standing in the names of individual members of the family can be taken as acquisitions of the joint family. In the case of Srinivas Krishnarao v. Narayan Devji Kango AIR 1954 SC 379, Venkatarama Ayyar, J., speaking for the court quoted with approval the observations of the Judicial Committee in the case of Appalaswami v. Surayanarayanamurti, AIR 1947 PC 189, where it had been observed:--
'The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint -property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.......'
In the case of Babubhai Girdharlal v. Ujamlal Hargovandas AIR 1937 Bom 446, which has been quoted with approval by the Supreme Court, the position of law was succinctly stated thus:--
'......The law, I think, is clearly established that from the existence of a joint family, it is not to be presumed that there is any joint family property. There is no presumption that property which belongs to a member of a joint family is joint family property. The plaintiff in setting out to prove that property 'B' is joint family property must in the first instance discharge the burden of proving that fact. But it is also established that if there is a joint family, which possesses a nucleus of joint family property, then property acquired by a member of that family is presumed to be joint family property. But the question arises what is meant by a nucleus.
In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or at any rate in considerable part. It is not in my opinion enough to prove, as Mr. Dave has contended in this case, that the mere possession of joint family property at the date of the purchase of the property in suit is enough to raise the presumption that the property in suit is itself joint family property. It would, I think, be unfortunate if the Court was bound to presume that something had occurred, which on the evidence could not possibly have occurred, and if it be shown that the only joint family property existing at the date, of the acquisition of the property in suit was of such a nature that it could not possibly have been the means of acquiring the property in suit, then in my opinion the presumption that the property in suit is joint family property does not arise ...............'.
Almost the same position was reiterated by the Supreme Court in the case of Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sank AIR 1969 SC 1076, where Ramaswami, 3, observed (at p. 1080):--
'......The law on this aspect of thecase is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate'.
Coming to the facts of the case, we find that the joint family was possessed of about 20 acres of land. The plaintiffs had asserted that the acquisitions were with joint family nucleus and defendants had denied that assertion. One of the plaintiffs as P. W. 1 stated ;--
'Our family income was sufficient for our maintenance and the surplus was being utilised in money-lending and purchasing properties. ......... This business was originally being managed by Bholi Misra. .........'
She has further stated that Bholi waa the Karta and Manager of the family.P. W. 2 has also stated that Bholi was the Manager and D. W. 1 has accepted that fact. There has been no specific cross-examination of P. W. 1 regarding her assertion that there was joint family nucleus for acquisition of property. The family was carrying on money-lending business. Apart from 20 acres of land, the additional source of income was out of such business. As we have already indicated, the total consideration money spent for acquisition of the four items of property was only Rs. 183/- and these acquisitions were spread over four years i.e. in 1921, for acquisition Rs. 50/-had been spent, in 1922, Rs. 100/- had been spent and in 1925, Rs. 33/- had been spent. Mr. Mohapatra emphatically contended relying on a series of decisions that mere existence of joint family property or a joint family nucleus was not enough. What had to be categorically shown was availability of surplus nucleus which alone would give rise to a presumption that the same may have been used for acquisition and would shift the burden on to the person claiming the property so acquired to be his self-acquisition. While we respectfully agree with the ratio indicated by the series of authorities referred to above, in the facts of the case, we are inclined to hold that there is sufficient material for the conclusion that there was surplus nucleus and, therefore, in the absence of evidence from the defendants' side, these four acquisitions must be taken to have been by the joint family. These four items are, therefore, liable to partition while the other fourteen items shall not be in view of the principle indicated by the Supreme Court in the case reported in AIR 1972 SC 1279.
9. Next comes certain properties standing in the name of the family deity. What was necessary to be examined in the trial court was as to whether the properties were absolute Devottar or nominal. In the event of Devottar being nominal, the properties were liable to be partitioned and if the properties were of the deity, there could be no partition. As there has been no clear finding, though defendants had contended non-partibility of the property of the deity, we are inclined to uphold Mr. Mohapatra's contention that the said property should not have been directed to be partitioned. We shall assume in the absence of any evidence from the plaintiffs' side that an absolute Devottar had been created and the deity was the true owner. Therefore, plaintiffs shall not be entitled to partition of the deity's properties. The deity's property shall be jointly enjoyed by the parties as before,
10. The appeal is accordingly allowed in part. The joint family properties i.e. the ancestral properties plus the four items of acquisitions as indicated above, shall be liable to partition and plaintiffs shall have one-third share therein as found in the trial court. From the hotchpot the other fourteen items of acquisitions shall be kept out and those shall belong to the respective members of the family in whose names the acquisitions had been taken. The deity's properties shall be excluded from partition and shall be enjoyed by the members of the family jointly. The other directions of the trial court shall stand affirmed. At this stage of litigation, we do not want to make any order for costs
P.K. Mohanti, J.
11. I agree.