1. This appeal by defendant No. 1 Charan Dasi Debi arises out of a suit for partition of a residential house in Hooghly -- Chinsurah Municipality. In order to understand the case the following genealogical table will be helpful.
RUDRA KANTA MAITRA
| | |
Sarada Ramprasad Gopal
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_________________________ Kusumkumari |
| | ___________________________________________________
Debendra Purna | | | |
=Charan Dasi | Atul Jagannath Siddheswari Annakali
Defdt.1 Kanai(plff.) |
| Defendant 11 to 14
Defendant 2 to 10
2. The disputed property belonged equally to the three brothers Sarada, Ramprasad and Gopal. Sarada died leaving his sons Debendra and Puma as heirs, Debendra being the elder. Ramprasad died leaving his daughter Kusum Kamari to inherit his share. Gopal had two sons, Atul and Jagannath as his heirs.
3. The case of the plaintiff who is the son of Purna is briefly that his father and uncle Debendra lived as members of a joint Hindu family undivided in estate and mess and Debendra was the Karta of that family, that Debendra and Purna acquired the one-third share of Kusum Kumari by a Kobala dated 14-6-1920 in the name of Debendra and that similarly they also acquired the 1/6th share of Atul in the property by a Kobala dated 19-5-1922. In this way the total share of the joint family of Debendra and Purna became 5/6th and after Puma's death the plaintiff's share has become 5/12th, the other 5/12th share belonging to Debendra's heirs who are defendants 2 to 10. The remaining 1/6th share of the property belongs to Defendants 11 to 14 as reversionary heirs of Atul, according to the case of the plaintiff and defendants 11 to 14. The plaintiff has brought this suit for partition claiming 5/12th share in the suit property.
4. The suit has been contested by Defendant No. 1, Charan Dasi Devi widow of Debendra who died on 29-3-1944. According to her case, her husband Debendra and the plaintiff's father, Purna did not live in joint family nor was Debendra Karta of such family, nor did Debendra acquire the shares of Kusum Kumari and Atul as the Karta of that family. Her case further is that Debendra and Purna lived in separate mess in separate portions of the house and Debendra acquired the shares of Kusum Kumari and Atul out of his separate fund. It was further asserted by her that Debendra acquired the share of Purna by amicable arrangement and similarly he acquired the share of Jagannath as well and in this way he (i.e. Debendra) became the sole owner of the suit property.
5. Both the courts below have held concurrently that the defence case that Debendra had acquired by amicable arrangement the shares of Purna and Jagannath is not true and at the time of the hearing of this appeal, the concurrent findings of the lower courts on the above point have not been challenged, and the appeal has not been pressed in regard to this point. The plaintiff has, therefore, at least 1/6th share in the suit property.
6. The controversy'in this appeal centres round the question whether the plaintiff can claim a bigger share and on this point the courts below have come to divergent conclusions. The trial court has repelled the plaintiff's claim to a arger share by virtue of the purchase by Debendra of the 1/3rd share of Kusum Kumari and 1/6th share of Atul: according to the plaintiff these purchases, though they stand in the name of Debendra, were made by Debendra as Karta of the Joint family and out of joint family funds. he trial court has held that these purchases were not the joint acquisitions of Debendra and Purna, but on the contrary, they were the acquisitions of Debendra alone and as such the plaintiff is not entitled to claim a share in them.
Differing from the trial court, the lower appellate court has held, however, that the purchases were made by both Debendra and Purna, though they stood in the name of Debendra alone and accordingly the plaintiff is entitled to 5/12ths, and not to 1/6th alone, of the suit property, in Coming to the above finding the learned Appellate Judge has referred inter alia to the following circumstances. Purna and his wife lived and died in the disputed house which is the ancestral house of the Maitra family. After Puma's death his widow and children lived in joint mess with Debendra who maintained them and who gave in marriage the youngest sister of the plaintiff: Apart from the disputed house, Debendra and Purna had some other joint property between them viz. some paddy lands, as deposed to by Anna Kali who Is a common relation of the parties and who has been examined as a witness by both the sides.
The plaintiff was only six years old when his father (Purna) died and he lived in joint mess with Debendra who was the Karta of the joint family and this he did up to one year before his deposition in this suit when he separated from Debendra's family. Though Debendra had an independent income of his own he was a postal employee -- it could not be possible for him to lay by Rs. 850/- out of his meagre income after meeting the expenses of his big family in order to purchase the shares of Atul and Kusum Kumari and so the purchases must, have been made by him out of the corpus of the joint family viz. the paddy lands spoken to by Annakali. Moreover, after purchasing the shares of Atul and Kusum Kumari in the paternal house, Debendra used them as ejmali property where both he and Purna lived and the acquired portion was thus thrown into the common stock.
In her deposition (Ex. 5) in the Probate case regarding the will by Debendra in favour of Charan Dasi (defendant No. 1), the latter admitted that Purna had equal share with her husband in the property. These are the main reasons which impelled the learned District Judge to come to the conclusion that Debendra and Purna had 5/12th share in the property each and that the plaintiff being the only son of Purna is entitled to claim his father's 5/12th share in the property.
7. Before coming to the main points urged before us on behalf of the parties, it will be better to dispose of the point regarding Ex. 5 --an alleged admission by the present Appellant in a Probate case. It has been mentioned - before, the learned District Judge inferred from this document that Charan Dasi Debi admitted that Debendra and Purna had equal shares in the suit property. The Courts below have differed regarding the real implication of the alleged admission. Quite apart from that, relying upon the case of -- 'Shaflquddin v. Mahbub Elahi', AIR 1930 Lah 714 (A), it has been held by the trial court --and in my opinion, rightly so -- that the alleged: admission cannot be used against defendant No. 1 as it was not put to her and no opportunity was afforded to her to explain it. It is no answer to say, as has been said by the learned District Judge, that the plaintiff had no opportunity to confront defendant No. 1 with the statement as her deposition on the point in the Probate Case was given after her deposition in this suit. If her deposition in the Probate Case be allowed to be put in in evidence against her in the present suit in order to contradict her without giving her an opportunity to tender her explanation or to clear up the particular point of ambiguity or dispute (and as has been pointed out before the Courts below have differed as to the real implication of her alleged statement in the Probate Case), it will be acting contrary to general principles of law. Ex. 5 is not, therefore, of any assistance to the plaintiff in the present case and the learned District Judge was not right in holding to the contrary.
8. Coming now to the main points urged before us, it has been argued for the Appellant that the learned District Judge made a fundamental mistake in holding that Debendra and Purna formed a joint Hindu family. It has further been contended that the learned District Judge was also wrong in holding that Debendra was the Karta of joint family, or that there was a nucleus of joint family funds, or that the disputed purchases were, or could be, purchased, out of or with the help of such nucleus. It has also been contended that the lower Appellate Court was also wrong in holding that after purchasing the shares of Kusum Kumari and Atul, Debendra threw them into the common stock. Further it has been urged that the learned District Judge has misplaced the onus as regards the acquisition of the disputed shares. .
9. It has been argued on behalf of the plaintiff respondent that the learned District Judge is right on the above points.
10. The normal state of every Hindu family is joint, presumably joint in food, worship and estate and, until the contrary is proved, the presumption is that the family continues joint. The presumption is stronger in the case of brothers than in the case of cousins. A joint Hindu family under the Dayabhaga Law in the present case the parties are governed by the Dayabhaga, Law like a Mitakshara family is normally joint in food, worship and estate. Under the Dayabhaga law there cannot be a Joint family consisting of the father and the sons; so long as the father is alive he is the master. So long, therefore, as Sarada was alive, it could not be said that he and his sons Debendra and Purna constituted a Joint Hindu family. The next point is whether after Sarada's death, his sons Debendra and Purna can be said to have formed a normal, or, as the learned District Judge puts it (at p. 22 of the paper book), a pure Hindu family.
In -- 'Gouranga Sundar v. Mohendra Narayan : AIR1927Cal776 , it was observed by a Bench of this court that the test of course must be whether they were joint in food, worship and estate. In -- 'Ganesh Dutt v. Mt. Jewach', 31 Ind App 10 PC. C., it has been pointed out, however, that cessor of commensality is an element which may properly be considered in determining whether there has been a partition of Hindu joint family property, but it is not conclusive. The case of -- 'Mt. Anundee Koonwar v. Khedoo Lal 14 Moo Ind App 412 (D)', was referred to for the above proposition. 'Mere severance in food and worship does not operate as a separation' (Sir Dinshah Mulla's Hindu Law 10th Edn. p. 233). In the present case there is no evidence that Debendra and Puma were joint in worship. Admittedly, however, on the death of Sarada, Purna separated in mess from his brother Debendra though he continued to live in a separate portion of the ancestral house. This is the finding of the trial Court (Vide p. 6 of the Paper Book). The learned District Judge's finding on the point is similar (vide p. 22 of the Paper Book).
The learned District Judge observes, however, that the mere fact that Purna had separate messing while living in the paternal house is not sufficient to show that the brothers separated in property. But the simple fact that the two brothers, Debendra and Purna, lived in separate portions of the same ancestral house after their fathers death cannot necessarily lead to the inference that they were members of a joint Hindu family, Other circumstances have got to be looked into in this connection. The only other joint property held by them about which there is any evidence was that they had some paddy lands in common, about which Annakali has deposed. Her evidence will be dealt with later. The finding of the trial court is that the brothers viz. Debendra and Purna had no other joint property. Simply because of the evidence of Annakali the learned District Judge says that the trial court is wrong on the point. The learned District Judge appears to have set much store by the evidence of D.W. 3 Atashi Kanta Ganguly, ex-head Clerk of the Kankinara Jute Mill and a close neighbour of the parties. In cross examination this witness stated that Debendra was the eldest member of the family and the Karta of the family. Reading his evidence as a whole, however, it will not be proper to read too much into that stray sentence in his cross examination and construe it to mean that Debendra and Purna (or after his death, his heirs) constituted members of a joint Hindu family in the strict sense of the term and that Debendra was the Karta of such joint family. The same witness stated that so far as he knew, the disputed house belonged exclusively to Debendra.
11. Another circumstance relied upon by the learned District Judge in this connection is after Puma's death Debendra maintained the family left by Purna, educated his son (viz. the plaintiff) gave his youngst daughter in marriage and the plaintiff also was joint in mess with Debendra and his family up to quite recent times. These again are not governing considerations in determining whether there was a joint Hindu family. In : AIR1927Cal776 it was pointed out how considerations like the above were quite consistent with the existence of separate families among Hindu brothers in Bengal. After Puma's death, his widow was left with a minor son (the plaintiff) and several unmarried daughters and if in these circumstances, the elder brother Debendra. or after his death, his heirs should have shown generosity to the helpless family of Purna it will not be proper to read too much into that circumstance.
12. We have to consider at the same time that both Debendra and Purna had separate earnings of their own in their respective jobs, and that while Purna used to live in the ancestral house as his place of service (Kankinara) was not far off, Debendra had to reside elsewhere with his family at different places owing to the exigencies of his service -- he was a Post Master. It does not appear from the documentary evidence that he put himself forward as the head of any joint family, even though he was the elder brother. Nor does it appear that Purna made any assertion that he was member of a joint family or that Debendra was the Karta of such family.
13. Considering all the circumstances, it is, difficult to uphold the finding of the learned District Judge that Debendra or Purna or after Puma's death, his heirs constituted a joint Hindu family in the true sense of the term. This finding would be fatal in the circumstances of the present case to the claim of the plaintiff that the acquisitions by Debendra of the shares of Kusumkumari and Atul would enure to the benefit of Purna as well.
14. Assuming however,' that Debendra and Purna constituted a joint Hindu family of which Debendra was the Karta, it has to be seen whether the plaintiff is entitled to succeed in his claim. In the case of -- 'Appalaswami v. Suryanarayanamurti', AIR 1947 PC 189 (E) which was a case under the Mitakshara law it has been observed that it is well settled that proof of the 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 item of property is 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 the 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. There are numerous authorities in support of the above propositions of law. It has to be shown by the person claiming the property to be joint family property that there was sufficient nucleus of joint family fund with which the acquisition could have been made and that such fund was available to the acquirer -- ('Amrita Lal Sen v. Surat Lal Sen', AIR 1942 Cal 553 (F). The next question is whether the presumption mentioned above is applicable to the Dayabhag School as well. Notwithstanding the head note in the case of -- 'Sarada Prosad v. Mahananda', 31 Cal 448 (G) which has been criticised as being 'entirely incorrect' by Sir Ashutosh Mookerjee J. in -- 'Rama Nath Chatterjee v. Kusum Kamini Devi'. 4 Cal LJ 56 (H) and as being 'misleading' by Mr. Justice Manmatha Nath Mukherjea in --'Jasoda Sundari v. Lal Mohan', AIR 1926 Cal 361 (I), commentators are agreed on the point that the rules as to onus and presumptions are the same both under the Mitakshara law and the Dayabhaga law. Thus in his Treatise on Hindu Law and Usage, Mayne says (at p. 365, 11th Edn.)
'the doctrine of self-acquisition in connectionWith a Dayabhag family is the same as in aMitakshara family. The rules as to onus andpresumptions applicable to a Mitakshara familyand its coparcenary property apply also to thecase of a Dayabhag family and its joint property subject to one apparent exception'.
We are not concerned with the exception for ourpresent purposes. Similarly, in Golap Sastri'sHindu Law it is stated (at pp. 466-467 of the 8thEdn.) that
'as regards what constitutes joint property, the enjoyment of the same by the members, the management of the same, the Managar's powers and the presumptions, the law appears generally to be the same in Bengal School as under the Mitakshara'.
To the same effect are the observations of Sir Dinshah Mulla in his Principles of Hindu Law (at p. 342, 10th Edn.)
'The presumptions with regard to joint family and joint family property which apply to cases under the Mitakshara law would also, apply to cases under the Dayabhag law.'
15. Assuming, therefore, that Debehdra and Puma constituted members of a joint Hindu family and applying the well settled principles laid down by the Privy Council in the case of --'Appalaswami v. Suryanarayana Murti (E)' referred to above, the initial onus rests upon the plaintiff to establish that the shares of Kusum Kumari and Atul purchased in the name of Debendra were joint family properties of both Debendra and Purna. It remains to be seen whether the family had, some joint property which from its nature and relative value might have formed the nucleus from which the shares might have been acquired. This brings us to the evidence of Anna Kali Debi -- the common relative of both the parties --whose testimony seems to be the sheet anchor of the judgment of the learned District Judge. This is what Anna Kali Debi said on the point
'So far as I know, they (i.e. Debendra and Purna) had another joint property. I do not know what has happened to that .... I cannot give the particulars of the other joint property of Purna. It comprised some paddy lands.'
She does not say what was the area of the lands, nor does she say what was the net produce or income from the lands, nor again as to what became of the lands. Neither does she say as to when the brothers possessed those lands or whether they were at all in existence at the tune when the shares of Kusum Kumari and Atul were purchased by Debendra in 1920 and 1922 at a cost of Rs. 850/-. There is no other evidence that the brothers possessed any other joint property which might form the nucleus. It cannot but be held that Annakali's evidence is far too vague and indefinite to base a finding regarding the existence of a nucleus of joint funds. The learned District Judge has drawn an adverse inference from the fact that defendant No. 1 did not explain what became of the joint paddy lands but it escaped the notice of the learned Judge that she was not asked anything on the point: her case was that the brothers had no joint property and no suggestion to the contrary was put to her. The learned District Judge should not have held upon such slender materials that the brothers had a nucleus of joint property. In the circumstances the burden of proving that the shares of Kusum Kumari and Atul were purchased by Debendra without the aid of joint family property cannot be said to have shifted to defendant No. 1. The decision of the learned District Judge to the contrary must be held to be wrong.
16. It has been argued, however, on behalf of the plaintiff respondent that as Debendra was the Karta or the Managing member of the joint family, the presumption is that the purchase of the shares of Kusum Kumari and Atul in his name is out of joint family funds and the properties are joint properties and in this connection, reliance has been placed upon the case of --'Bandhu Bam v. Chintaman Singh', AIR 1922 PC 215 (J). It was suggested on behalf of the appellant that that case dealt with the affairs of a business and as such different considerations arose: the report is not quite clear on the joint, though there are some indications that the suggestion may not be without substance. Be that as it may, as we are unable to hold that Debendra and Purna constituted a joint Hindu family or that Debendra was the Karta or managing member thereof, that case is not of much assistance to the plaintiff.
17. The learned Judge has also observed that after the acquisition of the shares of Kusum Kumari and Atul, it was thrown into the common stock by Debendra and in this connection certain, circumstances e.g. one Municipal Tax and one Electric bill for the entire building have been referred to. The circumstances referred to by the learned Judge are far too slender to lead to the inference drawn by him from them and they are not necessarily inconsistent with the sole ownership of Debendra.
18. Considering all the circumstances, we have reached the conclusion that the learned District Judge was not right in differing from the view of the trial Judge that the plaintiff has got only 1/6th share in the property and not 5/12th as claimed by the plaintiff.
19. In the result the appeal is allowed in part with costs, the judgment, and decree of the learned District Judge in so far as they modify those of the trial court are set aside and the judgment and decree of the trial Court are restored.
20. I agree.