P.C. Misra, J.
1. The defendants in Title Suit No. 77 of the 1971 of the Court of the Subordinate Judge, Aska, are the appellants in this appeal. The suit is one for partition of the suit properties described in the plaint schedule into two equal shares and fox allotment of one of such share to the plaintiff.
2. The admitted genealogy showing the relationship amongst the parties is given below for the better appreciation of the cases of the respective parties:
Sridhar @ Sindhu Padhan
Brundaban (D. 1) Natha
-Kautiki (D. 5) |
_________________________________ 3 Krishna (Plff.)
| | |
Ramachandra Hari Charan
(D.2) (D.3) (D.4)
The above genealogy would show that the plaintiff represents the branch of Natha whereas the defendants represent the branch of Brundaban. The plaintiff's case is that Natha and Brundaban were members of a Hindu joint family and the plaintiff's father Natha died in a state of jointness at an early age. The plaintiff was an infant at the time of the death of his father who was being looked after by his uncle Brundaban. It is alleged that Brundaban-defendant No. 1 was the manager of the family consisting of the plaintiff, his mother and others and he was managing all the joint family properties as the Karta thereof. The family at that time had about 70 Bharans of land which was more than sufficient for the maintenance of the family. The plaintiff alleges that there was surplus out of the income of the said properties and defendant . No. 1 purchased some properties which are included in the plaint schedule. The plaintiff's further allegation is that out of the acquired properties, an extent of Act. 1. 30. decs. had been purchased in the year 1941 by his grandfather, Sridhar and one Raghunath. Das of Mujagada jointly. But later on, in the year 1952 the half interest of Raghunath Das was purchased by defendant No. 1 and thus, the entire Ac. 1. 30 decimals of land became the family property. The plaintiff came of age in the year 1958, when he demanded partition of the family properties. Defendant No. 1 claimed some of the family properties as belonging to his wife exclusively. The plaintiff alleges that due to the dissensions in the family, a tentative allotment was made on 7. 6. 1968, but later on the defendants forcibly occupied the entire Ac. 1. 30 decs. of land which was purchased in the year 1941. The defendants having not agreed for a final settlement, the plaintiff has been compelled to file the suit.
3. The defendants have filed a joint written statement denying all the plaint allegations. They claim that all the properties described in the plaint schedule are not joint family properties and are . not liable for partition. They have specifically denied that there was any surplus out of the joint family lands and, according to the defendants, none of the properties acquired were out of the said alleged surplus. They take a specific plea that soon after the death of the plaintiff's father-Natha in or about the year 1952, there was a partition of the, family properties in which two Bharans of land was allotted to the share of the first defendant as 'Jesthansa' and the remaining properties were allotted equally to the plaintiff and defendant No. 1. They assert that no property was allotted to Sridhar in that partition and it was decided that the plaintiff and the first defendant would each give one cart-load of paddy for his maintenance. According to the defendants' each of the parties separately enjoyed their respective shares thereafter and the plaintiff being then a minor, his grandfather Sridhar was looking after the person and the properties of the plaintiff. The defendants plead that subsequent to the partition the first defendant purchased the land, which the plaintiff claims to have been acquired in the year 1941, in the year 1952 under two registered sale deeds out of his own funds. Similarly, defendants Nos. 2 and 5 had purchased some lands out of their separate funds subsequent to the partition. The plaintiff having made repeated complaints, the Bhadraloks intervened in the year 1968 and the lands were actually measured by them. It was found that the first defendant was in possession of some excess lands which he claimed to have got towards 'Jesthansa' and as the plaintiff objected to the same, the Bhadraloks equally divided the excess lands between the plaintiff and defendant No. 1. On these pleadings, the defendants claim that the suit is liable to be dismissed.
4. The learned Subordinate Judge on consideration of the evidence laid by the parties has come to the conclusion that there was no prior partition of the family properties between the parties as alleged by the defendants. He has further found that the property purchased in the year 1941 as well as the other half which was later on purchased belong to the joint family.The further finding of the trial Court is that the properties purchased under Exts. F and H being the purchases after Ext. 1, are not liable for partition. On the selfsame reasoning it has been held that the property purchased under Ext. G in the name of defendant No. 2 which was prior to the date of Ext. 1 belongs to the joint family. It may be noted that Ext. 1 is a partition list of properties dated 7. 6. 1968.
5. The present appellants have challenged the finding of the learned Subordinate Judge in relation to Exts. C, D and G. The learned trial Judge has found that the properties acquired under Exts. C, D and G belong to the joint family as the said properties were purchased prior to 7. 6. 1968, i.e., the date of Ext. 1. The plaintiff-respondent has filed a cross-appeal challenging the finding of the trial Court so far as it relates to the purchases under Exts. F and H as the learned Subordinate Judge has held that purchases under the said two Exts. were the self-acquired properties of defendant Nos. 2 and 5, being the transactions after the date of Ext. 1.
6. The defendants-appellants' case in the written statement was that there was a partition of the family properties soon after the death of the plaintiff's father Natha in or about the year 1952. The learned Subordinate Judge under Issue No. 1 has elaborately discussed the evidence on record in order to find out if there was a severance of status in the family and, if so, the point of time when such severance can be said to have been effected. It is elementary that the normal state of every Hindu family is joint and the legal presumption is that the family continues joint until the contrary is proved. Ext. 1 is a partition list dated 7. 6. 1968 which bears the signatures of the plaintiff and defendant No. 1. The . trial Court has found that the said document (Ext. 1) is genuine and the presumption of jointness upto the date of that document has not been rebutted by any acceptable evidence. Considering the oral evidence on record, the learned Subordinate Judge has come to a categorical finding that there was no severance of status between the parties prior to Ext. 1 and there has been no prior partition as alleged by the defendants. The said finding had not been seriously challenged in this appeal by the appellants. We have gone through the oral evidence on this issue and our conclusion is the same as that of the trial Court that the cumulative effect of all the circumstances established by evidence leads to the conclusion that the story of prior partition as alleged by the defendants is not acceptable. We would, therefore, proceed on the basis that Ext. 1 dated 7. 6. 1968 is the document by which unequivocal intention to separate was expressed by the plaintiff and defendant No. 1 and, therefore, the joint status of the family got severed on that date.
7. It is well-established in law that there is no presumption that a family, because it is joint, owns joint family property or any property whatsoever. Thus, in a suit for partition, the burden of proving that a particular item of property is a joint family property rests entirely on the plaintiff who claims it to be so. In order to establish that the acquisition of any property in the name of any of the individual members of the coparcenery was, in fact, joint family property, the plaintiff must prove that the family was possessed of some property, the surplus, out of the income of which, was sufficient for the acquisition of the said property by the joint family. Once it is established that the joint family had property from out of the income of which there was a surplus sufficient for the acquisition of other properties, keeping in view the value of such properties the presumption of law is that it is the joint family which has acquired the property even though the acquisition was in the name of the individual member. The said presumption is rebuttable by showing that the property was the separate and self-acquired property of the particular member in whose name it stands or was acquired. The aforesaid presumption of law is available in the case of acquisition in the name of a coparcener, i.e., a male member of the joint family. But there is no such presumption available in the case of property standing or acquired in the name of a female member of the family.
8. On the basis that the family continued joint till the date of Ext. 1, i. e., 7. 6. 1963, we find that the acquisition under Exts. C, D and G were prior to the said date. Exts. C, D and G are the sale deals dated 7. 11. 1952, 3. 3. 1952 and 9. 5. 1963, respectively. Brundaban Padhan defendant No. 1 is the purchaser under Exts. C and D whereas defendant -No.5 purchased the property under Ext. G. As already stated, the purchase in the name of defendant No. 5 who is a female member of the family stands tin different footing and there was no presumption that the property purchased in her name was an item of joint family property even if it is proved that the joint family had sufficient nucleus, which was sufficient for the acquisition of the said property. We would, however, deal with this acquisition a little after.
So far as the acquisitions under Exts. C and D are concerned, the same were purchased in the name of defendant No. 1. The recitals in the said documents to establish that it is defendant No. 1 who had paid the consideration out of his personal funds. The plaintiff would succeed in his claim of interest in the said property provided it is established on evidence that the joint family had properties the surplus out of the income of which was sufficient for the acquisition of the said properties. Except a bald statement of the plaintiff who was examined as P. W. 7, there is no other acceptable evidence for a conclusion that the acquisitions under Exts. C and D were out of the joint family surplus. P. W. 7 has admitted that there were 12 to 13 members in the family and the total expenses of the family in terms of paddy were 30 to 35 Bharans in a year. Looking to the total yield of the lands belonging to the family, it was not possible for the family to have any surplus so as ' to be utilised for acquisition of the properties. Under the circumstances, the initial onus which rests on the plaintiff to prove that the joint family was possessed of the properties and that the properties were of such a nature that from out of the income thereof the disputed properties were possible to be acquired under Exts, C and D has not been discharged. Thus, the question if defendant No. 1 had the means to purchase the properties under Exts. C and D does not arise for consideration. But we find that some acceptable evidence has been laid by the defendants through D. W.1 in support of the story that the acquisitions under Exts. C and D were cut of the separate funds of defendant No. 1 and not out of the joint family funds.
The property under Ext. G was acquired on 9.5.1958 in the name of defendant No 5. As already stated, there is a distinction as to the scope of presumption of law in case of acquisitions in the names of male members of a joint family and in the names of female members thereof. There is no presumption in case of the property standing or acquired in the name of a female member that it was from the surplus el the joint family even if it is established by evidence that the joint family was possessed of property the relative income whereof was sufficient for the acquisition of the property in question. Finding this difficulty, the plaintiff advanced a story of blending of the property acquired under Ext. G with the joint family properties and on that basis has claimed that he is entitled to a share therefrom.. It has been held by the Supreme Court in the case of Smt. Pushpa Devi v. The Commissioner of I. T. New Delhi, A I. R. 1977 S. C. 2230, that a Hindu female not being a coparcener cannot blend her separata property with the joint family properties. In this view of the law, the story of blending must be ignored horn consideration.
9. To sum up. the acquisitions under Exts. C, D and G cannot be held to be joint family properties and, therefore, cannot form the subject-matter of partition.
10. Now coming to the cross-appeal, the plantiff-respondent challenges the finding with respect to Exts. F and H. The trial Court has held that the acquisitions under: those two documents being after the date of Ext. 1 must be held to be belonging to those in whose names the properties were purchased. The property under Ext. F was acquired by a registered sale deed dated 23. 5. 1969 in the name of defendant No. 2.This was during the time when the joint status of the family had already been severed. There is no evidence on record to suggest that the- said property was purchased from out of the assets of the Joint family in the name of defendant No. 2. Therefore, the finding of the learned Subordinate Judge that the said property was purchased by defendant No.. 2 cannot be disturbed. So far as the property acquired coder Ext. H is concerned, the additional feature is that the same was purchased in the name of defendant No. 5, a female member of the family. The said property must also be held to belonging to defendant No. 5 alone for the very same reason for which the property under Ext. F was held to be Belonging to defendant No. 2
11. In the result, therefore, we allow this appeal so far as it relates to the properties acquired under Exts. C, D and G and dismiss the cross-appeal. In the facts and circumstances of the case, we make no order as to costs in this appeal.
G.B. Pattnaik, J.
12. I agree.