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Gangadhar Das and anr. Vs. Gadadhar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 147 of 1972
Judge
Reported inAIR1986Ori173
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 107; ;Hindu Law; Evidence Act, 1872 - Sections 3, 61, 67 and 110; ;Registration Act, 1908 - Sections 17
AppellantGangadhar Das and anr.
RespondentGadadhar Das and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateR.N. Sinha, ;S.S. Basu, ;S. Misra, Advs. No. 2 and ;S.C. Sahu, Adv.
DispositionAppeal allowed in part
Cases ReferredKale v. Deputy Director of Consolidation
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.b. patnaik, j.1. defendants 1 and 13 are the appellants against the judgment and decree of the subordinate judge, balasore, in o. s. no, 98 of 1968.2. the suit is one for partition amongst the four branches of laxman, khetramohan, sitaram and rama, their common ancestor being one kusun das. laxman has two sons jagannath and harekrushna. jagannath's son baidyanath is defendant no. 3. harekrushna is defendant no. 4 and his son gopinath is defendant no. 14. khetramohan's wife is brundabati and their three sons are gadadhar, gangadhar and bhagaban. gadadhar is plaintiff no. 1 and his son ganapati is plaintiff -no, 2. gangadhar is defendant no. 1 and his son sripati is defendant no. 13. bhagaban is defendant no. 2. sitaram has two sons --chakradhar and chemei. chakradhar's wife aparti is.....
Judgment:

G.B. Patnaik, J.

1. Defendants 1 and 13 are the appellants against the judgment and decree of the Subordinate Judge, Balasore, in O. S. No, 98 of 1968.

2. The suit is one for partition amongst the four branches of Laxman, Khetramohan, Sitaram and Rama, their common ancestor being one Kusun Das. Laxman has two sons Jagannath and Harekrushna. Jagannath's son Baidyanath is defendant No. 3. Harekrushna is defendant No. 4 and his son Gopinath is defendant No. 14. Khetramohan's wife is Brundabati and their three sons are Gadadhar, Gangadhar and Bhagaban. Gadadhar is plaintiff No. 1 and his son Ganapati is plaintiff -No, 2. Gangadhar is defendant No. 1 and his son Sripati is defendant No. 13. Bhagaban is defendant No. 2. Sitaram has two sons --Chakradhar and Chemei. Chakradhar's wife Aparti is defendant No. 5 and their two sons and a daughter -- Nanda, Panda and Sabitri are defendants 6,7 and 8 respectively. Chemei's widow is Bayani (defendant No. 9) and their sons Musi and Sachindra are defendants 10 and 11. Rama's son Banshidhar is defendant No. 12.

3. According to the plaint case, Schedule -- Kha property measuring 10.09 acres is the joint family property of the common ancestor Kusun. Schedule-Ga property measuring 13.53 1/2 acres is the property of Khetramohan's branch. Schedule-Gha property measuring 3.81 acres was acquired in the name of Khetramohan's widow Brundabati, but also is the joint family property of Khetra and his sons. The plaintiffs aver in the plaint that prior to the Current Settlement, the four branches of Kusun were living in separate mess and residence and were separately possessing their respective shares in the joint family property according to convenience though there was no partition by metes and bounds. Khetramohan died on 17-2-1949. After Khetramohan's (sic) Plaintiff No, 1 and defendants 1 and 2, i.e. the three sons of Khetramohan continued to live joint till 1954. Dissension having arisen amongst them, they separated from each other and possessed 1/12th share each in Schedule-Kha property and l/3rd share each in Schedules Ga and Gha property. But this was only by way of mutual adjustment and convenience and there had been no partition by metes and bounds. The further case of the plaintiffs is that on the intervention, of one Chandramohan, who is the maternal uncle of plaintiff No. 1 and defendants 1 and 2, some document of partition was prepared wherein all the three brothers signed but when the document was presented for registration, plaintiff No. 1 could know that he had been allotted lesser land than he was entitled to in accordance with the share and consequently he did not appear before the Sub-Registrar to get the document registered. Plaintiff No. 1 thereafter demanded amicable partition by metes and bounds, but since the same was not complied with, the suit has been brought. It is also averred in. the plaint that plaintiff No. 2 had purchased 51 decimals of land covered under 'Una' Schedule out of 'Kha' Schedule property from Chakradhar and Chemei and was, therefore, entitled to the same exclusively. The plaintiffs further aver that out of plot No. 483 in lot No. 1 of 'Kha' Schedule, all the three brothers', namely plaintiff No. 1, defendants 1 and 2 had purchased 5 decimals of land from Harekrushna and Jaganhath and also these three brothers purchased 27 decimals which represents 1/4 share of Banshidhar, in lot No. 2 of Schedule Kha. Accordingly, the plaintiffs claim 1/12 share in Schedule-Kha, 1/3 share each in Schedules Ga and Gha and 1/3 share out of the lands jointly purchased along with defendants 1 and 2, as referred to earlier. Plaintiff No. 2 claims his exclusive title to 51 decimals in Schedule-Una which he alleged to have purchased from Chemei and Chakradhar.

4. Defendant No. 1 contested the suit. He avers in his written statement that there was complete partition by metes and bounds amongst the four branches of Kusun, He further avers that Khetramohan was a famous Kaviraj and with his personal income he had acquired a lot of properties, but ten years prior to his death in 1950, he became ill and could not manage his properties during which period, plaintiff No. 1 being the eldest son began managing the family properties. After death of Khetramohan, plaintiff No. 1 became the Karta of the family and also continued to manage the family properties. During the life-time of Khetramohan, it is alleged, out of the joint family income, b decimals of land in mauza Sahada and 76 decimals in mauza Gudu had been acquired apart from 2.55 acres out of Schedule-Kha and the entire Ga and Gha schedule lands. Thus, Khetramohan had left in all about 2020 1/2 acres of land, cash of Rs. 4,000/- to Rs. 5,000/-, paddy weighing about 100 pouties, gold ornaments weighing 40 tolas and silver ornaments weighing about 4 seers. When Khetramohan died, plaintiff No. 1 took charge of all these properties and defendant No. 2 was helping him. Defendant No. 1 was entrusted with the cultivation of the landed properties. Thus the bulk of the joint family properties remained with plaintiff No. 1 and with the help of that income, 24,00-1/3 acres of landed property mentioned in Schedule-Kha of the Written Statement of defendant No. 1 was acquired by plaintiff No. 1 and defendant No. 2 prior to separation between the three brothers. Those properties are thus liable to partition amongst the three brothers which have been omitted from the plaint schedule. On coming to know that plaintiffs 1 and 2 and defendant No. 2 are creating some fraudulent sale deeds behind the back of defendant No. 1 in Jan., 1965, he separated from them and demanded partition of the joint properties and though at the intervention of Chandramohan, the maternal uncle, a complete partition of the landed properties was effected amongst the three brothers and a deed of partition was also brought in to existence on 28-3-1966, but the same could not be registered as plaintiff No. 1 backed out on some pretext or the other. Defendant No. 1 has further pleaded that after separation, plaintiff No. 1 and defendant No. 2 have constructed two new houses out of the joint family funds in their hands and have acquired immovable properties mentioned in Schedule-Kha of the written statement of defendant No. 1 and, therefore, the defendant No. 1 has contended that both plaintiff No. 1 and defendant No. 2 were liable to render accounts is respect of the immovable properties in their hands as well as of the joint family business. Defendant No. 1, therefore, prayed that the properties mentioned in plaint Ga, Gha and Una schedules as well as the properties mentioned in Schedules Kha and Ga of the written statement of defendant No. 1 were liable to be partitioned into three shares.

5. Defendant No. 2 filed a written statement and according to him separation between the brothers took place in 1954 since when they were separately possessing their shares of land after amicable division, He also claimed that he being a Kaviraj had sufficient separate income out of which he acquired 11 acres of land and further 58 decimals which he had purchased under a sale deed date 22-4-1967 from defendant No. 3 and 13 1/2 decimals from defendant No. 14 by a registered sale deed dt. 21-7-1967 were his self-acquisitions and according to him a suit for partition was not maintainable since there was a complete prior partition in the year 1954.

6. Defendant No. 3 in his written statement has contended that lot No. 1 of plaint Kha schedule has been partitioned amongst the co-sharers and defendant No. 3 is separately possessing his 1/8 share long since and, therefore, the said lot is not liable to be partitioned again. It has also been further contended that defendants 3 and 4 have 8 annas interest in lot No. 5 in plaint Kha schedule lands.

7. Defendant No. 4 also filed a separate written statement wherein he claimed that he had purchased half decimal out of plot No. 485 pertaining to lot No. 1 of plaint Kha schedule from Chakradhar, the ancestor of defendants 5 to 8, by a registered sale deed and 1.1/8 decimals from the said plot under a registered sale deed dt. 9-9-1966 from defendants 5 to 7 after Chakradhar's death, which were his self-acquisitions and could not be the subject-matter of partition.

8. Similarly other defendants also filed separate written statement with which we are not very much concerned in the present appeal except the case of defendant No. 14. Defendant No. 14 in his written statement pleaded that Chemei and Chakradhar, sons of Sitaram, separated from each other after the current settlement and separately possessed their 1/5 share in the paternal properties according to convenience and while so living, Chakra and Chemei both died. After the death of Chemei on 7-2-1965, his heirs (defendants 9 to 11) sold lands in favour of defendant No. 14 by a registered sale deed dt. 21-3-1966 (Ext. F/1) for a consideration of Rs. 500/- and the said property having been purchased by defendant No. 14 was his self-acquired property in his possession and, therefore, this property, could not be the subject-matter of partition. Thus, essentially defendant No. 14 disputed the claim of defendants 1 and 13 in relation to the properties purchased by him under Ext. F/1, which, as alleged by defendant No. 13, had been purchased by him on 5-2-1965 under Ext. A/3.

9. Several issues were framed by the trial Court on the above pleadings of the parties and the trial Court recorded the following findings: --

(a) It was admitted during argument that there was no reliable evidence on record to show as complete partition amongst the four branches of Kusun:

(b) The oral evidence adduced by the plaintiffs and defendant No. 2 as regards the time of separation amongst the three brothers is discrepant and unreliable and the oral evidence adduced by defendant No. 1 in support of the story of separation in 1965 is also unreliable.

(c) On the basis of documentary evidence, however, the plaint story of separation amongst the three brothers in 1954 is established.

(d) 3.72 acres acquired in 1951 in the name of plaintiff No. 1 prior to separation must be held to be joint family property of the three brothers.

(e) Acquisitions in the names of plaintiff Nos. 1 and 2 and defendant No. 2 subsequent to separation are their respective self-acquisitions except lot No. 1, item No. 1 of Schedule-Ka appended to the written statement of defendant No. 1, which stands in the name of the four branches and, therefore, is liable to be partitioned.

(f) So far as movables are concerned, there was no reliable evidence to show the availability of movables for partition and accordingly the question of partition of movables does not arise.

(g) Lot Nd. 2 of Schedule-Kha of the written statement of defendant No. 1 having been acquired in 1963-64 in the name of plaintiff No. 2 is the self-acquisition of plaintiff No. 2 and, therefore, is not liable to be partitioned.

(h) Since there is no evidence from which it could be established that plaintiff No. 1 and defendant No. 2 were in possession of the joint family properties and were managing the joint family affairs, the question of directing them to render accounts does not arise.

(i) So far as the claim of defendant No. 14 is concerned, it was held that Ext. F/1 was duly executed by defendant No. 9 for self and for his minor son and the same was for consideration which conferred full title on defendant No. 14 and the claim of defendant No. 13 on the basis of Ext A/3 must be rejected as Ext. A/3 was not executed by Chemei, the ancestor of defendants 9 to 11,

On these findings, the trial Court decreed the suit.

10. Mr. R. K. Mohapatra, the learned counsel appearing for the appellants submitted that from the evidence on record, the irresistible conclusion could be that there was a severance of status in Jan., 1965 and shortly thereafter there had been a partition by metes and bounds on 29-3-1966 as per the allotments made in the unregistered deed of the said date and thus the suit for partition was liable to be rejected. There is no dispute that the parties were in possession of properties more or less to the extent of their respective shares being enjoyed separately for the sake of convenience. But the main question which requires consideration is whether there had been a partition by metes and bounds as alleged by the defendants or the parties were merely in possession of properties separately for the sake of convenience and there had actually been no partition as alleged by the plaintiffs. Mr. Mohapatra, in support of his contention that there was a complete partition by metes and bounds, relied on some oral and documentary evidence adduced in this case, but 1 do not think it necessary to go into all those evidence since in the impugned judgment under issue No. 2, it has been categorically stated that at the trial this plea was given up and it was admitted during arguments that there was no reliable evidence on record to show a completed partition amongst the four branches of Kusun. Mr. Mohapatra, the learned counsel for the appellants, submitted that there was no such concession and he was entitled to challenge the same on the basis of the evidence on record. The said submission of Mr. Mohapatra, in our opinion, is devoid of force. It is well settled that when a judgment is founded on a misconception as to a concession made by an advocate, the proper procedure is to apply by way of review to the very Court in whose judgment the error is alleged to have crept in for a rectification of the mistake, if any, and it would not be proper for the appellate Court to wipe out the effect of the so-called concession on considering the evidence. (See Rama Santra v. Rani Soudamini Manjari Devi, ILR (1962) Cut 673; Madhusudan Chowdhri v. Mst. Chandrabati Chowdhrain, AIR 1917 PC 30; Moran Mar Basselios Catholicas v. Most. Rev. Mar Poulose Athanasius, AIR 1954 SC 526 and State of Maharashtra v. Ramdas Shrinivas Nayak, AIR 1982 SC 1249). Accordingly, it must be held that the suit for partition is maintainable.

11. The next question which comes up for consideration is when actually there had been a severance of status or in other words disruption of the joint family of Khetra and his sons. According to the plaintiffs, it was in the year 1954, whereas according to defendant No. 1, it was in the year 1965. Khetra undoubtedly died on 17-2-1949 as appears from Ext. 56, which is an extract of the Death Register. A joint and undivided family is the normal condition of Hindu Society and the concept of a Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line. The coparcenary in the present case was constituted of Khetra and his three sons who are plaintiff No. 1, defendant No. I and defendant No. 2 in the suit, with which we are concerned and plaintiffs represent the branch of Gadadhar, the eldest son of Khetra, while defendants 1 and 13 represent the branch of Gangadhar, the second son of Khetra, and Bhagaban, the third son of Khetra represents as defendant No.2 in the suit. The presumption as regards jointness of a Hindu family continues unless it is proved to the contrary. The plaintiffs positively asserted that there was a disruption of joint status among the three sons of Khetra in the year 1954. In support of this stand plaintiffs rely on the evidence of P.Ws. 2 to 4 and the evidence of D. Ws. 1 and 2 for defendant No. 2. They also rely on some documents like separate payment of Panchayat Tax, separate acquisitions of and dealings with immovable properties by plaintiff No. I and defendants 1 and 2, separate recording in the voters' list. P. W. 1 is plaintiff No. 1. He naturally supports his own case. PW 2 who was a Sarpanch of the Gram Panchayat from 1955 to 1958 stated in his evidence that plaintiff No. 1, defendant No. 1 and defendant No. 2 were separated from each other since 1957 or 1958 and were living separately for the last 16 to 17 years. He deposed this fact on 22-2-1972 and, therefore, the time of separation according to him would be 1957. In cross-examination, however, he admitted to be a debtor of the plaintiffs and further his total ignorance about any affairs of Khetra's family thoroughly makes him incompetent to depose about the disruption of joint family. DW. 1 for defendant No. 2 stated that he heard about the separation amongst the brothers 17 to 18 years back, whereas DW. 2 for defendant No. 2 stated that the alleged separation was for the last 12 to 14 years.

Thus the time of separation as alleged by different witnesses varies from one another and the witnesses are so inconsistent that no Court relying on their evidence can come to a definite conclusion about the year of separation.

12. Defendant No. 1 on the other hand categorically asserted that the brothers were separated since 1965. DW. 1 for defendant No. 1 who was in visiting terms with the plaintiffs' family stated in his evidence that plaintiff No. 1 and his brothers were separated from each other for the last seven years. He was deposing on 7-3-1972 and, therefore, the date of separation comes to 1965-66. He further stated that five years back plaintiff No. 1 and defendant No. 2 had constructed their new houses. The trial Court did not rely on the testimony of this witness since the witness admitted that he had some litigation with defendant No. 2's wife's brother. In our opinion, this is too far-fetched for which the intrinsic worth of the evidence of the witness can be said to have been diluted. The other ground advanced by the trial Court for not relying on the testimony of this witness is that he is a muharrir and defendant No. 13 is also a muharrir. Nothing has been brought out in the cross-examination of this witness to indicate that he for any good reasons was hand-in-glove with defendant No. 13 and further it does not appear from his evidence as to why he should falsely depose to help defendant No. 13 merely because he was a muharrir. After going through the evidence of this witness, we are satisfied that his evidence inspires confidence and can be safely relied upon. This witness, therefore, corroborates the version of defendant No. 1 to the effect that there was severance of joint status between plaintiff No. 1, defendant No. 1 and defendant No. 2 in the year 1965.

D. W. 3 for defendant No. 1 though stated in his evidence that the three brothers were residing in their ancestral house prior to seven years and for the last seven years they were living in separate houses, thereby indicating the severance of joint status in the year 1965, his evidence does not inspire much confidence since he admits that he was not present when the parties were separated and further his visit to the plaintiffs' house was of a very occasional nature only for the purpose of getting some medicine from plaintiff No. 1 and he has no intimate relationship with plaintiffs' family. We would, therefore, agree with the trial Court that his evidence cannot be relied upon to ascertain the date when there was severance of the joint status.

D. W. 5 is the brother-in-law of defendant No. 1 his sister having married defendant No. 1. He is, therefore, fully interested for defendant No. 1 and we would exclude his evidence from consideration.

Defendant No. 13, son of defendant No. 1 has examined himself as D. W. 1. He undoubtedly supports their case to the effect that his father separated from his other brothers for the last seven years which fixes the date of separation sometime in the year 1965.

Thus, the oral evidence adduced on behalf of defendants 1 and 13 is quite consistent and acceptable and according to the said evidence, it must be held that there was severance of joint status between plaintiff No. 1, defendant No. 1 and defendant No. 2, sometime in the year 1965.

13. In this connection we would also examine some documentary evidence adduced in this case. Ext. A/1 is a deed which purports to have recorded the partition amongst the brothers. This document has not been registered and, therefore, the trial Court has excluded this from consideration. Mr. Mohapatra, the learned counsel for the appellants, has contended that the document in question is not a deed of partition, but merely recognises or records an earlier partition and consequently does not require registration. In support of this submission, he places reliance on the decision of this Court in the case of Brajamohan Das v. Radhamohan Das, AIR 1961 Orissa 41. Alternatively, he submits that Ext. A/1 is at best a family settlement and records the memorandum framed after the family arrangement and such a document is not required to be registered in law and in support of this contention, the learned counsel places reliance on the decision of the Supreme Court in the case of Kale v. Deputy Director of Consolidation, AIR 1976 SC 807. There is no dispute with the aforesaid proposition of law, but Mr. Sinha, the learned counsel for the plaintiffs-respondents submits that the document Ext. A/1 is a document of partition and, therefore, is complusorily registrable. After going through Ext. A/1, we agree with Mr. Sinha, the learned counsel for the plaintiffs-respondents, that the document in question is a document of partition and cannot be construed to be either a document recording a prior partition or a deed of family settlement, as contended by Mr. Mohapatra. Since the said document is one partitioning the properties amongst the family members, it is required to be registered and not being registered becomes inadmissible in evidence and consequently, cannot be relied upon.

14. On behalf of the plaintiffs some documents of status in 1954. Exts. 3 to 3/e produced by the plaintiffs (sic) and Exts.'A-2 to A-2/2 produced by defendant No. 2 are some receipts in their independent names. Ext. 3 series stand in the name of plaintiff No. 1 alone and these are of the year 1958-59 and 1959-60. Exts. A-2/1 and A-2/2 for the years 1956-57 and 1957-58 stand in the name of defendant No. 2. On the basis of these documents, Mr. Sinha for the plaintiffs-respondents contends that by 1956-57 there had already been a severance of the joint status for which each branch was paying tax separately, Though the plaintiffs have proved assessment of separate tax in the names of plaintiff No. 1 and defendant No. 2, but no such assessment in the name of defendant No. 1 has been proved or established. Mere separate payment of Grama Panchayat tax cannot conclusively establish that there had been a severance of joint status in the family.

The plaintiffs also relied upon the voters' list of the year 1961 (Ext. J) to indicate the severance of joint status, but in our opinion, the said voters' list does not prove any such fact. On the other hand, it shows that the family was joint at least till 1961 and, therefore, the names of plaintiff No. 2, wife of plaintiff No. 2, defendant No. 2 and his wife, defendant No. 1 and defendant No. 13 have been noted against holding No. 85.

15. Thus, in our opinion, the documentary evidence adduced in this case does not lead to any conclusion as to the time of severance of joint status. We would, therefore, relying on the oral evidence adduced on behalf of the defendants 1 and 13 come to the conclusion that the joint family continued till 1965 and there was severance of joint status sometime in the year 1965.

16. We would then examine the question as to which are the joint family properties liable to be partitioned. Defendant No. 1 in his written statement appended a list of properties to Schedule-Ka of the written statement claiming those properties to be joint family properties acquired by plaintiff No. 1 and defendant No. 2 prior to the severance of joint status which were admittedly omitted from the plaint schedule. Schedule-Kha of the written statement of defendant No. 1 also contains a list of properties which according to defendant No. 1 were the joint family properties not included in the plaint schedule and Schedule-Ga of the written statement according to defendant No. 1 is the joint family movables. So far as the properties described in Schedules Kha and Ga of the written statement of defendant No. 1 are concerned, in the Court below it was conceded on behalf of defendant No. 1 that those properties were not liable to be partitioned and in view of such concession it is not necessary for us to examine that aspect of the case.

17. So far as the properties described in Schedule-Ka of the written statement of defendant No. 1 are concerned, the trial Court divided those properties into two groups, i.e. properties acquired prior to 1954 and properties acquired subsequent to 1954, since according to the trial Court, the separation was in the year 1954. Properties acquired prior to 1954 to the extent of 3.72 acres have been held to be joint family properties liable to be

partitioned. We are only required to find out whether the properties acquired subsequent to 1954 are also the joint family properties or not. This becomes necessary since we have held that the severance of joint status occurred in the year 1965. Out of these properties, 5.52 1/2 acres have been acquired in the name of plaintiff No. 1 for a total consideration of Rs. 2,850/- under Exts. 15,22 to 26 and 30 and the period of acquisition is between 1960 and 1963. Properties to the extent of 3.41-1/3 acres have been acquired in the name of plaintiff No. 2 for a total consideration of Rs. 3,040/-under Exts. 6 to 10,16,17 between the period 1962 and 1964 and properties to the extent of , 11.79 1/2 acres have been acquired in the name of defendant No. 2 for a total consideration of Rs. 5,099/- under Exts. O, S, U, K, D-2, E-2 and F-2 between the period 1958 and 1965. Thus, all these acquisitions have been made prior to disruption of joint status of the family though subsequent to the death of Khatramohan. It is, therefore, necessary to scan the evidence to find out whether these acquisitions are acquisitions made out of the joint family fund or are self-acquisitions. These properties having stood in the names of plaintiff No. 1, plaintiff No. 2 and defendant No. 2 and defendant No. 1 claiming them to be joint) family properties, the onus is heavy on defendant No. 1 to establish that they are so. Mr. Mohapatra, the learned counsel for the appellants, submits that defendants 1 and 13 have discharged their onus by proving that the joint family had sufficient property with the income of which the properties in question could have been acquired and, therefore, the parties who claim the property to be self-acquisition must prove that they acquired the properties out of their own income. It is true that the onus which lies on the defendant No, 1 can be discharged by proving that the joint family had sufficient income which could form the nucleus out of which the properties in question could have been purchased or from which a presumption can be drawn that the properties though acquired in the names of individual members of the joint family, yet they assume the character of joint family property, but to raise that presumption, it must be clearly established on facts as to what was the extent of joint family properties, what was the expenditure of the joint family and what remained as surplus which could be utilised for acquisition of the properties in question. If we scan the evidence adduced on behalf of defendants 1 and 13 from this stand-point, we find that they have not been able to establish these facts. Except making vague statement that the joint family had sufficient property, no details have been given, no statement has been given as to the extent of the surplus, the joint family was having after meeting the day to day expenses. On the vague statement that the joint family had some property, it is not safe to hold that the properties in question could have been acquired out of the funds of the joint family. We would, therefore, hold though for reasons other than those adduced by the trial Court that defendant No. 1 had failed to establish that the properties standing in the individual names of plaintiff No. 1, plaintiff No. 2 and defendant No. 2, out of the properties enumerated in Schedule-Ka of the written statement of defendant No. 1 were the joint family properties, excepting the 3.72 acres of land which has been held by the trial Court to be the joint family property of the three brothers. We would also hold, in agreement with the trial Court, that item No. 1 of lot No. 1 of Schedule-Ka of the written statement of defendant No. 1 measuring 05 decimals is liable to be divided among the four branches of Kusun which was agreed to by all parties in the Court below.

18. Mr. Mohapatra, the learned counsel for the appellants, does not challenge the findings of the Court below on issues Nos. 7, 9 and 10 but he seriously contends that the conclusion of the learned Subordinate Judge on issue No. 8 cannot be sustained. Issue No. 8 relates to the dispute between defendant No. 14 on the one hand and defendants 1 and 13 on the other and the property is admittedly that of Chemei. While defendant No. 14 claimed to have purchased the said property from defendants 9 to 11 who are the heirs of Chemei by a registered sale deed dt. 21-3-1966 under Ext. F-1, defendant No. 13 claimed the selfsame property on the basis of a registered sale deed dt. 5-2-1965 (Ext. A-3) executed by Chema Das, the ancestor of defendants 9 to 11. It is, therefore, to be found out whether as between the two competing sale deeds which one would prevail. If Ext. A-3 conveys valid title in favour of defendant No. 13, then defendants 9 to 11 had no further interest to pass on under Ext. F 1. The learned Subordinate Judge on the oral evidence of defendant No. 9 who is the widow of Chema Das alias Chemei came to hold that Chemei died in 1964 and necessarily, therefore, he could not have executed Ext. A-3 on 5-21965 and, thereafter, he considered the case of defendant No. 14 and came to hold that Ext. Fl in favour of defendant No. 14 was for valid consideration and passed title and defendant No. 14 derived title on the basis of that deed. The grounds on which the learned trial Court discarded Ext. A-3 are (a) its finding that Chemei died in 1964; and (b) Chemei though was literate, Ext. A-3 bears his left thumb impression. Both these grounds cannot be sustained if the evidence is scrutinized. No doubt, the plaintiffs averred in para 2 of the plaint to the effect that Chemei died four to five years prior to the filing of the suit, which takes the date of death to be some time in 1964, the plaint having been filed in 1968, but defendant No. 14 in his written statement categorically stated that Chemei died on 7-2-1965 and this assertion of defendant No. 14 has not been taken into consideration by the learned Subordinate Judge. The evidence of D.W. 1 for defendant No. 9 that her husband died eight years back cannot be taken to be correct since she herself said that she was 21 when her husband died and she gave her age while deposing as 31. If actually her husband had died eight years back, then her age on the date of deposition should have been 29. In this view of the matter, her evidence cannot be taken to be conclusive and in view of the assertion made by defendant No. 14, who is the rival claimant, it must be held that Chemei died on 7-2-1965 which is subsequent to the execution of Ext. A-3. No doubt, Chemei knew to sign his name, as appears from Ext. 10, a sale deed executed by him on 8-7-1963, but even in that sale deed, the thumb impression of Chemei has been affixed before the Sub-Registrar. In Ext. A-3, the thumb impression of Chemei has been affixed and he has not signed, but on that ground it cannot be said that the document has not been executed by Chemei. The Sub-Registrar has appended his certificate to the effect that the execution is admitted by Chema Das who was identified by one Bhagabatprasad Parida. We have also compared ourselves the thumb impression of Chema appearing on Ext. 10 with the thumb impression of Chema appearing on Ext. A-3 and to our naked eye both the thumb impressions appear to be of one and the same man. The execution of Ext. A-3 cannot be said to be invalid merely because a person who knows to sign his name executes a document by putting his thumb impression. We therefore, do not agree with the finding of the learned trial Court and hold that Ext. A-3 is a genuine document executed by Chema alias Chemei and confers good title on defendant No. 13. Since Ext A-3 conveys good title, defendants 9 to 11 had no subsisting interest to convey under Ext. F-l and consequently, defendant No, 14 does not get any title conveyed under Ext F-l. Accordingly, it must be held that the property under Ext. A-3 is the property of defendants 1 and 13. In this view of the matter, this appeal must be allowed to the extent that the property covered under Ext. A 3 is the property of defendants 1 and 13. The appeal shall, however, fail in respect of all other submissions except that the conclusion of the trial Court as regards severance of joint status is varied by us. The judgment and decree of the lower Court are affirmed except to the extent that the property covered under Ext. A 3 should go in favour of defendants 1 and 13.

19. In the ultimate result, therefore, the first appeal is allowed in part to the extent indicated above. Parties are directed to bear their respective costs of this appeal.

P.C. Misra, J.

20. I agree.


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