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Nanak Chand and ors. Vs. Toti - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 364 of 1967
Judge
Reported inILR1970Delhi113
ActsLimitation Act, 1908 - Schedule - Article 142
AppellantNanak Chand and ors.
RespondentToti
Advocates: T.C. Chitkara and; P.N. Nag, Advs
Cases ReferredIshak Ali v. Mst. Unnasbi Porthahin and
Excerpt:
.....law--joint family--presumption as to--no such presumption however, that any particular property is joint family property--burden of proof.; the general principle is that every hindu family is presumed to be joint unless the contrary is proved and the burden rests on the person who asserts that there was a partition. there is no presumption that any property whether movable or immovable held by a member of a joint hindu family, is joint family property. the burden lies upon the person who asserts that a particular property is joint family property to establish that fact. but if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal..........argued that the courts below were in error in holding that there was no partition of the joint property. according to the learned counsel, issue no. 9 was intimately connected with issues 4 to 6 and it was incumbent on the courts below to have first decided as to what was the nature and extent of the whole of the joint family property before considering the question whether there had been severance of the joint family tie and partition of the family property. he strongly urged that the omission to decide issue no. 9 vitiated the decision and the case should, thereforee, be remanded for fresh decision after deciding issue no. 9. (6) in support of his argument mr. chitkara referred to a decision of the supreme court in k. v. narayanaswami lyer v. k. v. ramakrishna lyer and.....
Judgment:

Hardayal Hardy, J.

(1) This second appeal is directed against the judgment of the District Judge, Mandi, affirming the judgment and decree of the trial Court whereby the suit for joint possession and declaration filed by the plaintiff-respondent was decreed. The decision of the appeal should ordinarily have been concluded against the defendant-appellants by concurrent findings of fact by the two Courts below but the counsel for the appellants submitted that the appeal was under paragraph 32 of the Himachal Pradesh (Courts) Order, 1948, and as such it was open to him to canvass facts. He also submitted that the case involved questions of law on which the Courts below had gone wrong. The arguments in appeal have, thereforee, covered a wider range.

(2) The facts as to which there is no dispute may first be stated - Smt. Toti is the widow of one Gokal and has been wrongly described by the learned District Judge as the sister-in-law of Nanak Chand, defendant-appellant No. 1. Actually she is the aunt of Nanak Chand. The latter is son of Bhund who was brother of Gokal, husband of Toti. Bhund and Gokal had also a third brother named Panjku. All the three brothers are now dead and are represented in this litigation by their legal heirs. The land in dispute measures 58-10-11 Bighas situate in village Leda, llaqa Bagda. Tehsil Sadar, District Mandi.

(3) On 25-5-1962 Smt. Toti filed a suit in the Court of Subordinate Judge, Mandi, on the allegations that she was a co-sharer with the heirs of her husband's brothers to the extent of one-third share, that the land was joint in the life-time of her husband but after the death of her husband the defendants took forcible possession of the same and deprived her of its produce. The defendants contested her claim infer alias on the ground of limitation. They also pleaded that they were the exclusive owners of the land inasmuch as the same had been partitioned during the life-time of the plaintiff's husband about 22 to 23 years ago whereby he was given land in village Tiambia as his share and since then the parties were in separate enjoyment and possession of their respective shares. The pleadings of the parties led to several issues being framed of which Issues 3,4,5,6,7 and 9 are material and have been canvassed before me. The issues read:-

'3.Whether the suit is within time O.P.P.

4.Whether the plaintiff owns l/3rd share in the suit land? O.P.P.

5.Whether the land in suit is in separate possession of the defendants after partition of the parties family about 22 and 23 years back as exclusive owners thereof O.P.D.

6.Whether the plaintiff has been given the land of village Tiambia as her share in the above referred partition O.P.D.

7.Whether the defendants are in adverse possession of the land in suit O.P.D.

9.Whether the land in possession of the plaintiff is the self acquired property of her husband after getting separated O.P.P.'

(4) The trial Court decided issues 3 and 4 in favor of the plaintiff and issues 5, 6 and 7 against the defendants. In view of its findings on issues 4 to 6, the trial Court did not consider it necessary to give 'any finding on issue no. 9. Learned District Judge concurred in the findings recorded by the trial Court and dismissed the appeal filed by the defendants.

(5) At the hearing of the appeal Mr. Chitkara, learned counsel for the appellants, argued that the Courts below were in error in holding that there was no partition of the joint property. According to the learned counsel, issue no. 9 was intimately connected with issues 4 to 6 and it was incumbent on the Courts below to have first decided as to what was the nature and extent of the whole of the joint family property before considering the question whether there had been severance of the joint family tie and partition of the family property. He strongly urged that the omission to decide issue no. 9 vitiated the decision and the case should, thereforee, be remanded for fresh decision after deciding issue no. 9.

(6) In support of his argument Mr. Chitkara referred to a decision of the Supreme Court in K. V. Narayanaswami lyer v. K. V. Ramakrishna lyer and others. : [1964]7SCR490 where it was held that if it was found as a fact that at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and would form part of the joint family property, unless the contrary was shown. In the present case the family was admittedly joint. It was also possessed of considerable property which formed sufficient nucleus for acquisition of other property. The property in village Tiambia though acquired in the name of Gokal should, thereforee, be presumed to have been acquired from out of family funds and thus formed part o.f the joint family property.

(7) The argument sounds attractive but it cannot hear much scrutiny. The rule of Hindu Law as I understand it and I dare say that my view has the support of the Supreme Court in Mst. Rukhambai v. Lala Laxmmarayan and others : [1960]2SCR253 , is that there is a presumption that a family is joint; but there is no presumption that any property whether movable or immovable held by a member of a joint Hindu family. is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property had been acquired without any assistance from the joint family property. In the present case there is absolutely no evidence to show when the property in village Tiambla was acquired, what was the joint family property at that time and whether the joint family nucleus was sufficient to enable the property in Tiambia being acquired with its aid. Gokal was admittedly not the manager of the family nor was he in possession and charge, of family funds. The defendants did not lead any evidence to prove the existence of sufficient joint family nucleus. No attempt was made to place on record the income from the family property. Even the nature and extent of Tiambia property was not disclosed. All there is no record is that in the revenue records the property was entered in the name of the plaintiff and she was in exclusive possession of the same from long before the Hindu Succession Act, 1956 came into force. She must, thereforee, be held to be the absolute owner thereof when she filed her suit in 1962. Instead of leading evidence to establish sufficient joint family nucleus the defendants set up a case of previous partition which, as I shall presently show, they failed to prove.

(8) The plaintiff came to Court with a definite case that the property in village Leda was the only property of the family. If the defendants claimed that the family owned some other property as well, it was for them to adduce some evidence at least to establish that fact. They could not rest their case on presumption alone for which too no material was placed by them on record at all.

(9) This takes me to the next contention of Mr. Chitkara. He argued that the defendants had led evidence to prove that there was private partition among, the brothers. The plaintiff herself had admitted that since the time of her husband's death she had not been given any share of produce. The land revenue was also being paid by the defendants only and that she was paying land revenue for her land in village Tiambia alone. The defendants' witness Chamaru (DW. 2) stated that partition between Bhund, Gokal and Panjku had taken place in his presence about 20 or 22 years back and that the land in village Leda was given to Bhund and Panjku while the land in village Tiambia was given to Gokal. This evidence has been disbelieved by both the Courts below and I am in complete agreement with them. According to the witness besides him, Kanshi Ram, Hazaru, Masadi and Jagta were present at the time of partition. Nanak Chand defendant, however, deposed to the presence of Chamara, Kanshi Ram, Ghunghar and Jagta, Kanshi Ram Ghunghar and Jagta being dead, Nanak Chand and Chamara alone were examined. No Explanationn was given for not examining Hazara and Masadi who were both alive, if at all there was, such a partition and these persons were present on the occasion.

(10) The onus of proving the partition lay on the defendants. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved and the burden rests on the person who asserts that there was a partition. Mr. Chitkara, however based himself on a judgment of the Supreme Court in Bhagwan Day at (since deceased) and thereafter his hairs and legal representatives Bansgopal Dubey and another v. Mt. Reoti Devi (deceased and after her death Mst. Dayavati, her daughter : [1962]3SCR440 submitted that in the case of old transactions where no contemporaneous documents were maintained and when most of the active participants in the transaction had passed away, though the burden still remained on the person who asserted that there was a partition, it was permissible to fill up gaps by reasonable inferences. He urged that the only reasonable inference from the fact of plaintiff's being in possession of separate property in village Tiambia and from the fact that she had not claimed any interest in the land in dispute for over 11 years since the death of her husband was that there had been partition as alleged by the defendants.

(11) There is no force in the submission made by the learned counsel as the circumstances referred to by him are completely over-weighed by the contrary evidence furnished by the facts relied upon by the plaintiff. The revenue entries in the Jamabandi (Ex. P.B.) are in the joint names of Nanak, Panjku and Smt. Toti She has l/3rd share in the land in dispute which has been shown to be 'MAKBUZA KHUD' which means joint possession of the co-sharers. Ex, P.B. relates to the year 1958-59. After the death of Gokal, the husband of the plaintiff, his estate was mutated in the name of the plaintiff. Ex. P. A. is the copy of the mutation dated 17-12-1950. This mutation was attested in the presence of Nanak Chand appellant who is Lambardar of the ilaqa. The presumption of truth attaches to the revenue entries. If there was a private partition among the brothers about 20 or 22 years ago there is no reason why Nanak Charid should have attested the mutation of Gokal's estate in village Leda in December 1950 in favor of the plaintiff and should have allowed the Jamabandi entries (Ex. P.B.) to remain undisturbed.

(12) Mr. Chitkara argued that the people in Mandi District, particularly those living in villages are illiterate and have no dealcomprehension of the consequences flowing from mutation and other revenue entries. The argument is wholly devoid of substance. Nanak Chand is a Lambardar of the ilaka. He was personally present when mutation of the estate in village Leda was being made in favor of the plaintiff and actually attested the same. If she had no interest left in the joint property and her estate had been separated of from the rest of the estate, he could not have allowed the mutation to be made in her favor.

(13) I, thereforee, agree with the Courts below that the case of private partition set up by the defendants has not been established. The land in dispute is, thereforee, joint property of the parties and the plaintiff has one-third share therein. As was held by the Supreme Court in Chote Khan and others v. Mal Khan and others : [1955]1SCR60 partition is a right incident to the ownership of property and once the parties are held as co-owners their right to partition cannot be resisted.

(14) Mr. Chitkara lastly argued that on the plaintiff's own showing the defendants had forcibly taken possession of the land in dispute after the death of her husba,nd and had refused to give her any share of the produce. Her suit was, thereforee, barred by time and that the onus to prove adverse possession did not lie upon the defendants. Reliance was placed on a Full Bench decision- of Madras High Court in Official Receiver of East Godavari at Rajahmundry v. Chava Govindaraju and another A.I.R. 1940 Mad 798 The case deals with the interpretation of Article 142 of the Limitation Act, 1908, and it was held that it is wrong to say that a person who proves title in a suit for ejectment has the right to the decree sought by him unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he shows in addition to title that he has been in possession of the property within 12 years of the suit and that the burden lies on the plaintiff and not on the defendant.

(15) In the case of co-owners, however, the possession of one coowner is referable to the title of the other unless there has been an ouster. As was said in Ishak Ali v. Mst. Unnasbi Porthahin and -others : AIR1958MP209 'the rule of law is that possession is referable to a lawful title, and between coowners, possession of one is referable to the title of the other, unless there has been an ouster. But where possession has continued for a considerable period of time exclusively with one co-owner and prima facie to the exclusion of other or others, this principle can hardly be applied.' The case relates to Mahomedan co-sharers but the ratio of the case applies equally to Hindu joint owners. In the present case there is no evidence of ouster at all for a period of 12 years. On the other hand, the fact that the mutation entry dated 17-12-1950 (copy Ex. P.A.) was attested by Nanak Chand defendant clearly showed that at least on that day the defendants had no intention of ousting the plaintiff. The suit filed A by her on 25-5-1962 was, thereforee, well within 12 years. The Jamabandi entries (Ex. P.B.) made in the year 1958-59 could not be hidden from Nanak Chand who was Lambardar of the ilaka. He could not have allowed those entries to remain there if there was any intention on the part of the defendants to deny her right to possession. Their possession must. thereforee, be referable to lawful title of and on behalf of all the co-owners including the plaintiff.

(16) The result is that there is no merit in this appeal which must be dismissed but in the circumstances, the parties are left to bear their own costs throughout.


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