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Nisamani Bawa and ors. Vs. Laxman Nayak - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 397 of 1982
Judge
Reported inAIR1986Ori181
ActsHindu Law
AppellantNisamani Bawa and ors.
RespondentLaxman Nayak
Advocates:P.K. Misra, ;N.C. Pati, ;A.K. Mohapatra and ;J.R. Dash, Advs.
DispositionAppeal dismissed
Excerpt:
.....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 be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is..........described in schedule 'ka' and 'kha' of the plaint are the joint ancestral family properties, the joint family consisting of himself and his father, defendant no. 1. on 14-5-76, his father defendant no. 1 transferred schedule 'ka' lands in favour of defendant no. 2 and schedule 'kha' lands in favour of defendant no. 3 by registered sale deeds without any legal necessity and without any consideration and, therefore, defendants 2 and 3 have not acquired any right, title or interest on the basis of those sale deeds.the defendants in their written statement pleaded that the transfer in question was supported by consideration and also for legal necessity and the alienation was made as defendant no. 1 was not looked after by his son, the plaintiff, during his old age and he required some.....
Judgment:

G.B. Patnaik, J.

1. Defendants are the appellants against the order of the Additional District Judge, Puri who by the impugned order has set aside the judgment and decree of the learned trial Court and remanded the matter for fresh disposal in accordance with law. The plaintiff filed the suit for declaration that defendants 2 and 3 have not acquired any title in respect of 'Ka' and 'Kha' schedule properties under the registered sale deeds executed by defendant No. 1 in favour of them. Plaintiff is the son of defendant No. 1 and defendants 2 and 3 are the married daughters of said defendant No. 1.

2. According to the plaint case, the properties described in Schedule 'Ka' and 'Kha' of the plaint are the joint ancestral family properties, the joint family consisting of himself and his father, defendant No. 1. On 14-5-76, his father defendant No. 1 transferred Schedule 'Ka' lands in favour of defendant No. 2 and Schedule 'Kha' lands in favour of defendant No. 3 by registered sale deeds without any legal necessity and without any consideration and, therefore, defendants 2 and 3 have not acquired any right, title or interest on the basis of those sale deeds.

The defendants in their written statement pleaded that the transfer in question was supported by consideration and also for legal necessity and the alienation was made as defendant No. 1 was not looked after by his son, the plaintiff, during his old age and he required some money for his illness.

3. On these pleadings the learned Munsif framed as many as six issues and on issue No. 4 came to hold that the sale deeds executed by defendant No. 1 in favour of defendants 2 and 3 were genuine and for consideration. In answering issue No. 5, the learned Munsif came to the conclusion that though the sale was genuine and for consideration, the plaintiff had title in respect of plots Nos. 3192 and 3404 to the extent of his interest, the properties being admittedly ancestral properties. He, therefore, declared plaintiffs title in respect of plots Nos. 3192 and 3404 but dismissed the suit in respect of other plots. It was further found that the lands in schedule 'Ka' and 'Kha' other than plots Nos. 3192 and 3404 were the self-acquired properties of defendant No. 1. Against the judgment and decree of the trial Court, the plaintiff carried an appeal to the District Judge. The plaintiff-appellant mainly contested the finding of the trial Court that all other properties apart from plots Nos. 3192 and 3404 are the self-acquired properties of defendant No. 1. On consideration of the evidence on record, the learned Additional District Judge came to hold reversing the conclusion of the trial Court that all the suit properties were the joint ancestral properties of the family consisting of defendant No. 1 and the plaintiff. The finding of the trial Court that the transfers in favour of defendants 2 and 3 by defendant No. 1 are genuine and supported by consideration was not challenged and, therefore, was affirmed by the lower appellate Court. Joint family property if sold without any legal necessity for the same, will not confer any right on the transferee. Since the plaintiff in his plaint had categorically asserted that there was no legal necessity for the transfers in question, but there was no issue nor was there any finding by the trial Court on this aspect. The lower appellate Court remanded the matter with the direction that an issue be framed as to whether there was any legal necessity of the joint family for transfer of thesuit schedule 'Ka' and 'Kha' lands by defendant No. 1 in favour of defendants 2 and 3 and the trial Court would give opportunity to the parties to adduce further evidence on this point and the suit would be disposed of in accordance with law.

4. It is conceded by Mr. Misra, the learned counsel for the appellants that the order of remand would be unassailable if the finding of the lower appellate Court to the effect that all the suit properties are the joint ancestral properties of the family would stand Mr. Misra, however, challenged the said finding of the lower appellate Court and contended that the learned Additional District Judge did not keep in mind the true legal position while assessing the evidence in this regard. The learned Additional District Judge has relied on Exts. E, F, G, H and J which are sale deeds under which the properties were acquired for the purpose. Under the said sale deeds, defendant No. l was described to be aged 15 years and the executants received the consideration money from the father of the plaintiff. According to the learned Additional District Judge, defendant No. 1 had no source of income and when his father had paid the consideration money and the transfer was at a point of time when defendant No. 1 was a minor, it only shows that the property was acquired out of the joint family funds. Similarly, Ext. F dated 17-3-1835 shows that defendant No. 1 was 16 years and the consideration money under the deed was paid by the father of defendant No. 1 Gopi Naik. In Ext. G, defendant No. 1 has been described as 19 years and in Ext. H, he has been described as 20 years and in both these sale deeds, consideration money was paid by the father of defendant No. 1. By the time, the property under Ext. J was acquired, defendant No. 1's father was dead. Since defendant No. 1 was a minor when the properties under Exts. E, F, G and H were acquired and the consideration money for the same had been paid by the father of defendant No. 1 and there was no material on record to indicate that defendant No. 1 had any separate source of income, the properties must assume the character of joint family properties. By the time the property under Ext. J was acquired, the joint family had sufficient nucleus out of which the property under Ext. J could have been purchased and the same must be presumed to be joint unless defendant No. 1 proves by positive evidence that it is his self-acquired property. Since defendant No. 1 did not adduce any materials in support of his case claiming the property under Ext. J to be the separate property of his, the learned Additional District Judge has come to hold that all the properties including the properties under Ext. J are the ancestral properties of the family. According to Mr. Misra, the learned counsel for the appellants, it is not the law, that any property acquired in the name of any individual member of 3 joint family must assume the character of jointness. On the other hand, what is apparent from the documents must be held to be real unless the contrary is proved. Mr. Misra, placed reliance on a passage from the Hindu Law by Mulla wherein the learned author has summarised the law on the heading 'No presumption that a joint family possesses joint property'. According to the learned author, there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, party claims that any particular item of the property is joint family property, or when in a suit on a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving that is so rests on the party asserting it. To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence. There is at times undiscriminated use of the expression 'presumption' in this context. It is to be understood to indicate those presumptions of fact which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general solvent for all cases. Where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the parry alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. (See Mulla's Hindu Law Article 233 at page 304, 15th Edition). According to Mr. Misra, applying the aforesaid test in the present case, it must be held that the properties are the self acquired properties of defendant No. 1 and not the joint family property as held by the lower appellate Court.

5. Admittedly plot No. 3192 measuring AO. 19 decimals and plot No. 3404 measuring AO. 18 decimals are the joint family properties. But there is no evidence as to what was the income out of these lands so as to form a nucleus for acquisition of further property. But I find an important piece of admission by defendant No. 1 which has not been taken into account by the lower appellate court. Defendant No. 1- admitted that his father and he himself were living jointly and their ancestral occupation is weaving and the weaving machine was from his father's time. The properties acquired under Exts. E. F. G and H are all acquisitions during the lifetime of the father when defendant No. 1 was a minor and the consideration money under those sale deeds have been stated to have been paid by the father. In this view of the matter, in my opinion, the properties must be held to be joint family properties, unless defendant No. 1 proves the same to be his self-acquisition. But there is no evidence on record from which it can be said that defendant No. 1 has discharged the burden of proving the properties to be the self acquisitions. In my considered opinion, the conclusion of the lower appellate court that the properties are the joint family properties cannot be assailed. Consequently, the lower appellate court was fully justified in remanding the matter by framing an additional issue on the question of legal necessity for the sale in question and the direction of the lower appellate court cannot be said to be contrary to law. In my opinion, there is no ground to interfere with the order of the learned Additional District Judge and accordingly 1 do not find any merit in this appeal.

6. In the result, therefore, the appeal is devoid of merits and is accordingly dismissed, but there would be no order for costs of this appeal. The interim order dated 22-9-82 stands vacated. The learned trial court (Subordinate Judge, Puri) will now dispose of the suit in accordance with the direction of the order of remand passed by the Additional District Judge, Puri.


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