1. This regular first appeal is directed against the judgment dated 24th August, 1967, of the Subordinate Judge Ist Class, Amritsar, whereby the suit of the plaintiff--appellant (hereinafter to be called the appellant ) was dismissed in respect of properties in suit except one House No. 369 which was held to be the joint Hindu family property.
2. The appellant, Shri Sant Ram, filed the suit, out of which the present appeal has arisen, against his father Shri Parma Nand, respondent No. 1, his brothers, respondents Nos. 2 and 3, Smt. Shakuntala, wife of his brother Ram Parkash (respondent No. 4) and one Shri Tilak Raj, Respondent No. 5, for declaration that the appellant and respondents Nos. 1, 2 and 3 constituted joint Hindu family with his father, respondent No. 1, as Karta or manager and that the properties as detailed in items Nos. 1 to 9 of the plaint were joint Hindu family properties. It was pleaded that some of these properties had been inherited from his grandfather and the others were the acquisitions from the joint family fund. It was averred that Shri Jawahri Mal, grandfather of the appellant, carried on business in Amritsar and at the time of his death left a considerable property comprising of shops, houses gold jewellery and cash amounting to one lakh rupees as well as agricultural land and houses in village Ibban Kalan, tehsil and district Amritsar. The joint Hindu family also carried on business as commission agents under various names and in partnership with various persons in Amritsar, from which considerable profit was accumulated. The appellant also worked in these business enterprises without any salary. Even taking to Government employment, a part of the salary was also used to be given by him to his father as Karta of the joint Hindu family. The business carried on by Smt. Shakuntala Devi, respondent No. 4 and Tilak Raj, respondent No. 5, was in fact benami and had been brought into existence from the income of the joint Hindu family.
3. It was further averred that the appellant had brought a similar suit for declaration in the Court of Shri Onkar Nath, Subordinate Judge, Amritsar in 1964(vide Suit No. 42 of 1964). On 20th Jan. 1965, during the pendency of the said suit, at about midnight his signatures were fraudulently obtained by his father, respondent No. 1. When he himself was under the influence of sleeping drugs. It was also alleged that at the time respondent No. 1 had represented that the entire dispute between the members of the joint Hindu family was to be referred to arbitration. The document on which the signatures of the appellant had been procured contained an admission on his part that he had no right, title or interest in the properties detailed in items Nos. 3 to 8 and House No. 376 in item No. 1 as described in the heading of the plaint of the said earlier suit. Having come to know of the fraud played on him, the appellant submitted an application, in the Court of Subordinate Judge on the next day, i.e., 21st Jan. 1965, with a prayer that the said document should be on him. This application is again stated to have been withdrawn on the next day under the undue influence of his father and the alleged arbitrator Shri Sardul Singh. On 22nd Jan. 1965, the appellant made a statement in the Court of the Subordinate Judge in the earlier suit making a similar admission regarding abandoning his claim with regard to some properties and also his request to strike out the names of defendants Nos. 4 and 5. According to the appellant, this statement was made on account of the assurance given to him by his father and the arbitrator that he will be given due share in the joint Hindu family properties. As averred by him, the order of the Sub--Judge in the earlier suit dismissing a part of the suit regarding the properties mentioned in his statement was not binding on him because the same had been manoeuvred as a result of the exercise of undue influence, fraud and misrepresentation. Subsequently the appellant made an application on 26th March, 1965 under O. 23, R. 1, Civil P. C. Seeking permission to withdraw the suit with permission to bring a new suit on the same cause of action. This suit was allowed to be withdrawn by the trial Sub--Judge vide his order dated 31st March, 1965, in which it was clearly mentioned that permission will not include the part of the suit which had been earlier dismissed with regard to some properties on 22nd Jan. 1965 and against defendants Nos. 4 and 5. The present suit was filed in pursuance of this order of the learned Subordinate Judge in the previous suit.
4. It is clear from the various averments in the plaint that the appellant has sought declaration in the present suit to the effect that all the properties enumerated in the heading of the plaint were joint Hindu family properties comprising of the appellant and respondents Nos. 1 to 3. Besides this, declaration has also been sought that admission or statement made by him previously in the earlier suit on 22nd Jan., 1965, is not binding or him as the same had been obtained by fraud, undue influence and misrepresentation.
5. The respondents in their written statement have resisted the claim of the appellant on all counts. Besides the preliminary objection that the suit was not valued properly for the purposes of Court fee and jurisdiction and that the suit for mere declaration was not competent, it has also been averred that in the earlier suit filed in 1964 claim having been abandoned by the appellant with regard to some properties and the suit having been withdrawn against defendants Nos. 4 and 5 the said claim could not be revived in the present suit and that the order of the Civil Court passed in the earlier suit was binding on the appellant, that the appellant was bound by his admissions and statements in suit were the self--acquired properties of either respondent No. 1 or other respondents and that no property had been acquired from the joint Hindu family fund as no property had been inherited from the grandfather of the appellant Jawahari Mal. It was also denied that there was any nucleus of the joint family property from which any of the properties in suit could be acquired. Exercise of undue influence, fraud or misrepresentation by any of the respondents on the appellant was also stoutly refuted. It was pleaded that the document, dated 20th Jan. 1965 signed by the appellant and the respondents and the statement made in Court on 22 Jan. 1965 by the appellant were made by the appellant voluntarily and of his own free will as a result of competent legal advice obtained by him.
6. On the pleadings of the parties the following issues were framed:---
1. Is the suit maintainable as against defendants Nos. 4 and 5 in view of the dismissal of plaintiff's earlier suit No. 42 of 1964 vide order of Shri Onkar Nath, Sub Judge dated 22nd Jan. 1965?
2. Is the suit of the plaintiff maintainable in respect of the properties mentioned at Nos. 3 to 8, in the heading of the plaint and house No. 376, forming part of property No. 1, in view of the orders passed in the previous suit and referred to under issue No. 1 above? O. P. P.
3. Whether the suit is properly valued for purposes of Court fee? O. P. P.
4. Whether the suit lies in its present form? O. P. P.
5. Whether the properties in suit are the joint Hindu family properties of the plaintiff and defendants? O. P. P.
6. Whether the suit is barred under the principle of res judicata? O. P. D.
7. Whether the suit is bad for misjoinder of parties and cause of action? O. P. D.
8. Whether the plaintiff is estopped from filing the present suit? O. P. D.
9. Whether the plaintiff is in possession of any portion of the suit property, if not, to what effect? O. P. P.
10. Whether the plaint is defective for non--disclosure of material particulars of fraud, misrepresentation and undue influence? O. P. D.
11. Whether the signatures of the plaintiff on application dated 21st Jan. 1965, were obtained by misrepresentation, undue influence and fraud and whether the statement dated 22nd Jan. 1965 by the plaintiff in the Court of Shri Onkar Nath, Sub Judge Ist Class, Amritsar had been made under the circumstances mentioned in paras Nos. 9 and 13 of the plaint. If so, to what effect? O. P. P.
12. If issue No. 11 is proved whether the order dated 22nd Jan. 1965 passed by Shri Onkar Nath, Sub Judge is void and without jurisdiction as alleged? O. P. P.
13. Whether the suit is within time? O. P. P.
7. Issues Nos. 10, 11 and 12 were decided jointly and it was held that the appellant had failed to prove that the application dated 21st Jan. 1965, bearing the signature of the appellant regarding the abandonment of the part of the claim and withdrawal of the earlier suit against defendants Nos. 4 and 5 as well as his statement in the Court in the said suit on 22nd Jan. 1965 were obtained by any undue influence, fraud or misrepresentation, and that the order of the learned Sub--Judge in the earlier suit dated 22nd Jan. 1965 was perfectly valid and in order. These three issues were thus decided against the appellant.
8. Regarding issues Nos. 1, 2, 6 and 8 it was held that the earlier suit had been withdrawn by the appellant against defendants Nos. 4 and 5(now respondents Nos. 4 and 5)and thus the present suit against them was not maintainable under O. 23, R. 1, Civil P. C. It was also held that the claim in respect of properties Nos. 3 to 8 as described in the heading of the plaint and House No. 376 had been abandoned in the previous suit and the suit in respect of the same was not maintainable. All these issues were also thus decided against the appellant.
9. Finally, finding in respect of each property as described in the heading of the plaint was also specifically given in the light of the evidence on the record and it was held that except House No. 369 as described in item No. 2 in the heading of the plaint, none of the properties in suit was proved to be joint Hindu family property and the suit in respect of House No. 369 was decreed in favour of the appellant and the said house was declared to be joint family property.
10. The learned counsel for the appellant has taken me through the judgment of the trial Court as well as the evidence, both oral and documentary, brought on the record but has relied upon the statements of P. W. 3, P. W. 5, P. W. 7, P. W. 10, D. W. 13, D. W. 15 and D. W. 16 only as well as the Partnership Deed, Exhibit D. 15, and the Relinquishment Deed, Exhibit D. 16/A, in support of his contentions. The learned counsel has confined his arguments only to issue no. 5. No arguments were addressed regarding the question as to how the suit was maintainable against respondents Nos. 4 and 5 in view of the dismissal of the appellant's earlier suit No. 42 of 1964 and in respect of properties claim, regarding which had been abandoned in the said suit. The only plea taken was that the trial Sub--Judge although had given findings against the appellant in respect of issues Nos. 1, 2, 6, 8, 10, 11 and 12, yet had also considered each property on merits as to whether the same was comprised in the joint Hindu family property or not. Thus it was not necessary to challenge the findings in respect of those issues. I have considered the findings of the learned Sub--Judge with regard to these issues and I am in agreement with the same. I thus affirm them. It is held that there is no evidence on the record to show that the application dated 21st Jan. 1965 signed by the appellant and other parties in the earlier suit, according to which the claim with regard to certain properties was abandoned by the appellant and the suit was also withdrawn against defendants Nos. 4 and 5, was not voluntarily signed by the appellant or that his signatures were obtained on the basis of any fraud, undue influence or misrepresentation. It is due influence or misrepresentation. It is also held that this application was further reinforced by the appellant by his statement made in the Court on 22nd Jan. 1965. Exhibit D. 1. The order of the trial Sub--Judge dated 22nd January, 1965 allowing part of the claim to be abandoned and part of the suit to be withdrawn was not challenged by the appellant in any manner and became final. The position was further made clear by the learned Sub--Judge in his order dated 31st March, 1965, when the remaining suit was allowed to be withdrawn with permission to file fresh suit. In these circumstances, the present suit against defendants Nos. 4 and 5 and in respect of properties mentioned at Nos. 3 to 8 in the heading of the plaint and House No. 376 is not maintainable.
11. According to the learned counsel for the appellant, one residential house No. 369 which has been held to be ancestral and part of the joint family property by the trial Court, some agricultural land in village Ibban Kalan tehsil and district Amritsar and a shop were inherited by the appellant's father, respondent No. 1, from the grandfather of the appellant. This constituted a sufficient nucleus with the aid of which the properties in dispute could be and were in fact purchased. It was also contended that father of the appellant, Parma Nand, after the death of his father Jawahri Mal, was working as Karta of the joint Hindu family comprising of the appellant and respondents Nos. 1 to 3 and as Karta of the joint Hindu family entered into partnership in 1924 with Kesar Singh and Piara Singh and the said partnership was styled as M/s. Kesar Singh Piara Singh. Therefore, the income accruing to respondent No. 1 from this business partook the character of joint Hindu family property and it was from this joint family fund that the property and it was from this joint family fund that the property in dispute was purchased. Placing his reliance on the finding of the Court below that an ancestral shop was sold in October 1924 by respondent No. 1, from which an amount of Rs. 4,000/-accrued to him, the learned counsel vehemently stressed that this amount formed a considerable and sufficient nucleus of the joint family property in 1924 with the aid of which the property in dispute could be purchased and, under the circumstances, the onus had shifted to the respondents to prove that the same did not form sufficient nucleus.
12. According to the averments in the plaint, a number of houses, shops and considerable agricultural land as well as ornaments and jewellery and cash amounting to Rs. 1 lakh were inherited by the father of the appellant from his grandfather. However, no evidence was brought on the record to show that any jewellery, ornaments or cash had been so inherited. According to the finding of the trial Court, this was conceded by the learned counsel for the appellant that there was no evidence whatsoever was adduced to come to a conclusion as to what area of agricultural land Parma Nand, respondent No. 1, inherited from his father. Documents Exhibits D. 14 and D. 21 to D. 27, on the other hand, prove that Parma Nand purchased 95 Kanals and 19 Marlas of agricultural land after starting business in partnership in 1924 in the firm M/s. Kesar Singh Piara Singh, in which he had--/4/--share. In fact, the learned counsel for the appellant did not refer to any evidence in his arguments to establish and prove as to how much area of agricultural land had been inherited by Parma Nand, respondent No. 1.
13. In his statement the plaintiff alleged that his father Parma Nand inherited cash amounting to Rs. 15,000/-from his father which was invested in the partnership business in the name of M/s. Kesar Singh Piara Singh, but no evidence whatsoever was adduced in corroboration of the same. On the other hand, the Partnership Deed, Exhibit D. 15, gives a lie to this contention. Close perusal of this deed shows that each of the two partners, Kesar Singh and Piara Singh, was to invest Rs. 50,000/-as capital in the partnership business and each of them had--/6/--share in the profits. Parma Nand was not to invest any capital whatsoever and he was to manage the business as a partner and his status was described in the deed as 'Karkun' (worker) and 'Gumashta'. This deed was executed on 12th August, 1924. House No. 369, which has been held by the trial Court to be the ancestral property, had served as residential house of the father and his sons including the appellant. There is no evidence to show if any part of this house was ever given on lease. Therefore, the question of any income accruing from this joint family property does not arise. Regarding the amount of Rs. 4,000/-received by Parma Nand as a result of the sale of the ancestral shop, it was stated by Parma Nand in his statement that the same was spent for the education of the appellant. It is the admitted case of the parties that the appellant was only ten years old at the time of his father's starting business as a partner of M/s. Kesar Singh Piara Singh, that appellant was the eldest son and that respondents Nos. 2 and 3 are his younger brothers. The trial Court considered it quite reasonable that this amount was spent by the father for the education of the plaintiff or at the most to meet other household expenses. There is nothing wrong with this finding and the same is affirmed. It is also clear from the evidence of Parma Nand that his father was only a 'Halwai' by profession and that Parma Nand himself did not adopt this profession. According to the statement of Parma Nand himself did not adopt this profession. According to the statement of Parma Nand, after the death of his father he took up employment with different persons as Munim till 1924 when he entered as a partner in the firm M/s. Kesar Singh Piara Singh. So far as the various immovable properties claimed by the appellant as joint family property are concerned, according to the documentary evidence on the record, and not disputed by the learned counsel for the appellant, they were purchased as under:---
1. House No. 374 was purchased by a registered sale deed. Exhibit D. 20, on 5th June, 1938 for Rs. 1500/-.
2. House No. 375 was also purchased in 1938 vide Exhibit D. 21.
3. House No. 376 was purchased in 1934 for Rs. 1212/-vide Exhibits D. 12 and D. 13.
4. 1/2 share in shops Nos. 1646 and 1647 was purchased on 8th December, 1931, for Rs. 1750/-vide sale deed Exhibit D. 11.
All these properties were purchased by Parma Nand, respondent No. 1.
14. Plot No. 14 was purchased by Sakuntala Devi, respondent No. 4, on 25th Oct. 1963, for Rs. 20,000/-. One building was purchased by Ram Parkash, respondent No. 3, on the 9th Nov. 1959 for Rs. 2300/-. Agricultural land was purchased by Parma Nand, respondent No. 1, for Rs. 1275/-on 2nd Nov. 1936.
15. So far as the business in different names are concerned, business in the mane of Arun Textile Mills. Amritsar was started by Ram Parkash, respondent No. 3, vide Exhibits D. 23/A, D. 17/A, D. 19/A, D. 21/A, D. 20/A. D. 22/A and D. 18/A. Business concern known as Sialkot Textile Mills was purchased by Smt. Shakuntla Devi, respondent No. 4, and Tilak Raj, respondent No. 5, in 1962 vide Exhibits D. 6 and D. 8. Business concern known as New India Silk Mills was solely owned by Jugal Kishore, respondent No. 2, vide Exhibit D. 29, D. 28, D. 30, D. W. 1/2 and D. W. 1/3.
16. In point of time the first property to be acquired by respondent No. 1 was 1/2 share in two shops in December, 1931, i. e., about seven tears if starting the partnership business in the mane and style of M/s Kesar Singh Piara Singh, in which he had--/4/--share. According to the unrebutted statement of Parma Nand, D. W. 13, grandfather of the appellant, had died more than 17 years before 1947 though exact date of his death has not been brought on the record. He worked as employee in a firm for 17 years on a yearly salary of Rs. 225/-. It is quite reasonable to conclude from the evidence on the record that before 1924 respondent No. 1, father of the appellant, could not establish himself so as to have a sufficient earning to spend on the household requirements, the education of the children and also to spare. During this period, it is but natural that the amount of Rs. 4,000/-obtained as a result of sale of shops must have been utilised to meet the day--to--day expenses. If he had any spare money, he would have invested some capital in the partnership business of M/s. Kesar Singh Piara Singh. As its partner he was income--tax assessee showing that he had sufficient income from his own labour, he took about seven years before he was in a position to purchase any property. In these circumstances, the only justifiable conclusion is that there was no joint family nucleus with respondent No. 1, which could be utilised for the purpose of purchasing any property or starting any business so that the income of the same could be treated as a joint family property or fund.
17. It is settled law that whereas there is a presumption in law regarding the jointness of a Hindu family between the father and his sons, there is no presumption that any property in the hands of the father is a joint Hindu family property. A reference may be made to a decision of their Lordships of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango, A I R 1954 S C 379, wherein it was held as under (at 382):---
'Proof of 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 any one 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 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.'
18. The learned counsel has relied upon Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil A. I. R. 1959 S. C. 906, K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer A. I. R. 1965 S. C. 289, and Prem Nath v. Commr. of Income--tax Delhi and Rajasthan, A. I. R. 1967 Punj. 1. (FB). None of these decisions advances the case of the appellant. In Mallappa Girimallappa Betgeri's case (supra) it was held as under (at P. 908):---
'Where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption was rebutted, it must prevail.'
In the present case, neither there is any material to warrant the conclusion, as discussed above, that there was sufficient nucleus of joint family property out of which the properties in dispute could be acquired nor can it be said that respondent No. 1 did not have any other source of income with which these properties could be purchased. On the other hand, the amount of Rs. 4,000/-was too meagre to constitute joint family property's nucleus and the same must have been spent in the course of years to meet the routine domestic expenses and the education of the children. Besides, respondent No. 1 had definitely a source of income by entering into a partnership business, which could be utilised by him in purchasing the properties in dispute.
19. In K. V. Narayanaswami Iyer's case (supra)(AIR 1965 SC 289) it was held that where at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring the same, the property so purchased should be presumed to be acquired from out of family funds.
20. In Prem Nath's case (supra)(AIR 1967 Punj. 1(FB) the question under consideration was under the Income--tax Act as to whether income of the joint Hindu family should be treated as his own individual income or the income of Hindu undivided family. It was held that if it can be shown that there was no aid taken from the family funds, directly or indirectly, in earning the income which was earned entirely or predominantly due to the personal exertions of the member without detriment to the funds of the family, the income would remain the individual income of the member and taxable in his hands.
21. From the ratio of the above decisions it is clear that the person who asserts and alleges any property to be Hindu Joint family property has to prove the same. In order to be successful in this he should either prove that the property was inherited from the common ancestor and as such being ancestral property it should be presumed to be joint family property. In the alternative, satisfactory evidence has to be led to warrant a conclusion that the property was acquired with the aid of joint family nucleus which, in its turn, has to satisfy a further test that such a nucleus was sufficient to acquire the property in question. In order to come to a conclusion whether the property in question was in fact acquired from the joint family nucleus, the fact that the karta or any member of the joint family acquiring the same had other source of income also from which the property in question was in fact acquired is also relevant and has a material bearing for determination of the controversy. In the present case, the only evidence is that Parma Nand, the father of the appellant, was in possession of a joint family nucleus of only Rs. 4,000/-as a result of a sale of the ancestral property. There are circumstances to show that this nucleus must have exhausted itself before the property in question was acquired or purchased, nor could this nucleus be considered sufficient for the purpose of acquiring this property. Besides, Parma Nand had an independent income from which the property in question could be acquired.
22. For the reasons mentioned above, there is no merit in this appeal. The judgment and decree of the trial Subordinate Judge is upheld and the appeal is dismissed with costs.
23. Appeal dismissed.