Skip to content


Naresh Chandra Ray and ors. Vs. Saradendu Roy - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberS.A. No. 935 of 1974
Judge
Reported inAIR1981Cal285
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 an 100; ;Evidence Act, 1872 - Section 3
AppellantNaresh Chandra Ray and ors.
RespondentSaradendu Roy
DispositionAppeal dismissed
Cases ReferredUnion of India v. Moksh Builders and Financiers Ltd.
Excerpt:
- .....failed to prove the existence of such nucleus of joint fund or any ancestral property by which the suit property could be acquired. he has found that the suit property was acquired by the individual earnings of the plaintiffs and that the defendants lived there as licensees till their license was duly revoked. the learned additional district judge has reversed the decision of the learned munsif on the finding that the plaintiff's father lalit chandra roy who was a practising lawyer and his younger brother surendra nath roy who was a medical practitioner and father of the defendants, lived jointly in property and mess at tangail in east pakistan that they had a joint fund that the land of the disputed property was purchased and the building thereon was thereafter constructed out of moneys.....
Judgment:

Amitabha Dutta, J.

1. This is an appeal by the plaintiffs from the decision of the learned Additional District Judge, 10th Court, Alipore in Title Appeal No. 1349 of 1970 reversing the judgment and decree of the learned Munsif, Additional Court, Sealdah in Title Suit No. 21 of 1969, for eviction of the defendants as ex licensees in one room in premises No. 30/42, Attapara Lane, P. S. Baranagar in the district of 24-Parganas.

2. The plaintiffs' case was that they are the owners of the suit premises that the defendants were licensees in one room in the suit premises and that the plaintiffs duly revoked the license by a notice dated 17th Dec., 1963 served on the defendants who did not vacate the suit room in compliance thereof.

3. The defendants contested the suit by filing a written statement in which they denied the allegations of the plaintiffs and asserted that they were occupying two rooms in the suit premises as co-owners of the said premises which was joint family property of their father Surendra Nath Roy and father's elder brother Lalit Chandra Roy (father of the plaintiffs) and was acquired out of their joint family fund.

4. The learned Munsif has decreed the suit holding that the defendants failed to prove the existence of such nucleus of joint fund or any ancestral property by which the suit property could be acquired. He has found that the suit property was acquired by the individual earnings of the plaintiffs and that the defendants lived there as licensees till their license was duly revoked. The learned Additional District Judge has reversed the decision of the learned Munsif on the finding that the plaintiff's father Lalit Chandra Roy who was a practising lawyer and his younger brother Surendra Nath Roy who was a medical practitioner and father of the defendants, lived jointly in property and mess at Tangail in East Pakistan that they had a joint fund that the land of the disputed property was purchased and the building thereon was thereafter constructed out of moneys brought from the aforesaid joint fund which existed in East Pakistan, that the plaintiffs have failed to prove acquisition of the suit property with their own earnings and that the defendants came to live in the suit property which was the joint family property in their own right.

5. The learned advocate for the appellants has raised two points. First the findings of the Additional District Judge are without evidence and based on misconstruction of the deed of relinquishment (Tyag Patra) dated the 8th Dec., 1926 (Ext. A) executed by Lalit, the elder brother in favour of Surendra as it does not indicate that they were living in joint mess. Secondly, the first appellate Court has misplaced the onus on the plaintiffs of proving the suit property as their self-acquired property although the initial onus to prove such property as joint family property has not been discharged by the defendants. After hearing the learned advocates of both parties and, considering the materials on record, I am unable to accept the submissions made on behalf of the appellants for reasons hereinafter mentioned.

6. Admittedly Lalit Chandra Roy, father of the plaintiffs was a practising lawyer and his younger brother Surendra, father of the defendants was a medical practitioner and they lived in the same house at Tangail in East Pakistan. The deed of relinquishment (Tyag Patra) dated the 8th December, 1926 admittedly executed by Lalit in favour of Surendra shows, as it has been rightly found by the learned Additional District Judge that the two brothers had an ejmali fund that the land of their residential house was purchased and the buildiqg thereon was constructed with their joint fund and that the two brothers lived there jointly. The expressions used in the document are':

^^rksekj ,oa vkekj ,tekyh rnfcnsj :- [email protected]&Vkdkj; [kfjn----------,tekyh c'kckl dfjvk vkfNrs Nh**-

As the land had been auction purchased in the name of Lalit he executed the said deed in favour of Surendra declaring his 8 annas share in the property by relinquishing that share in his favour to avoid further trouble. There is also evidence of D. W. 1, the defendant No. 1 Saradindu who is the eldest son of Surendra that his father kept all his earnings with his uncle (i. e. Lalit) and that his father and uncle lived in joint mess. The learned Additional District Judge has accepted this evidence. Lalit and Surendra lived and died at Tangaii. Lalit died in 1960. Surendra predeceased him in or about 1950. There is undisputed evidence that the plot on which the suit building was constructed was purchased in the name of the plaintiffs' father Lalit in 1948 for Rs. 1,731/-. Another plot was purchased in the names of the plaintiffs and the third plot was purchased in the name of Surendra in the same locality at about the same time. The disputed building was constructed in 1952. Four rooms in the ground floor were constructed first for about Rs. 10,000/-. The plaintiff No. 1 Naresh who is the eldest among the parties had to admit in cross-examination that funds required for purchase of the three plots and construction of the disputed building were brought from Pakistan through hundis. He took the active part in those transactions of purchase. After construction of the disputed building the plaintiffs and the defendant No. 1 went together to reside there and shortly thereafter the defendants Nos. 2 and 3 also came to live there. After the death of Surendra, the plaintiff No. 1 being the eldest among the parties swore an affidavit as guardian of the defendant No. 3 who was then a minor. Considering these facts and circumstances thelearned Additional District Judge has drawn the inference therefrom that the two brothers Lalit and Surendra continued in joint mess, property and fund as long as they lived and that the suit property was acquired out of their joint fund which existed in Pakistan and from which moneys were brought for acquisition of the suit property. It is settled law that a finding of fact made by the first appellate Court which is the final Court of facts can be interfered with in second appeal only when the finding is without evidence or based on inadmissible evidence or is perverse i. e. the finding is such that no reasonable and prudent man can come to it from the materials on record. This Court cannot disturb such finding in second appeal even when it is erroneous but not totally unwarranted by evidence. The decision as to whether the suit property is family property involved determination of a question of fact (vide Bacban Singh v. Dhian Dass, : AIR1974SC708 ). It has been held by the Supreme Court in Meenakshi Mills Ltd. v. Commissioner of Income-tax, Madras, 0044/1956 : [1956]1SCR691 that when the finding is one of fact that it is itself an inference from other facts will not alter its character as one of fact. In the present case the finding of fact arrived at by the learned Additional District Judge that there was sufficient nucleus of ejmali fund of Lalit and Surendra at the time of acquisition of the suit property for acquiring it and so it is joint family property is an inference from the totality of facts and circumstances viz, that there was a joint family of the two brothers Lalit and Surendra who were joint in property and mess that they had an ejmali fund as evidenced by the tyag patra of 1926 that Surendra used to give all his earnings from medical practice to his elder brother Lalit that Surendra lived in joint family with Lalit at Tangail till his death which took place in or about 1950 that funds for acquisition of the suit property were brought from Pakistan that the plaintiffs and the defendant No. 1 jointly occupied the suit house after its construction and that the plaintiff No. 1 being the eldest among the parties acted as guardian of the defendant No. 3 after Suren-dra's death. In my opinion, it cannot be saic that the principal finding of the learned Additional District Judge in this case is without evidence or totally unwarranted by the evidence on record as contended on behalf of the appellants.

7. It is not correct to say that the learned Additional District Judge has misplaced the onus of proof on the plaintiffs. His judgment plainly shows that he was conscious of the legal position that the initial onus was on the defendants to prove that the suit property was joint family property. In the case of Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, : [1969]3SCR245 the Supreme Court has held that there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that joint family property must be such as with its aid property in question could have been acquired. It is only after the possession of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. This decision has been referred to and followed in Rajendra Nath v. T. C. Das, AIR 1979 Cal 106 cited on behalf of the appellants. There is a series of earlier decisions of the Supreme Court laying down the same principle in the context of different sets of facts and it is unnecessary to cite them. In the present case on being satisfied that the defendants had discharged the initial onus the learned Additional District Judge dealt with the evidence adduced on behalf of the plaintiffs to prove that the suit property is their self-acquired property. The plaintiffs' case is that Lalit and Surendra were all along separate in property and mess and that the suit property was acquired out of the income of the four plaintiffs who are brothers and sons of Lalit. There is evidence of P. W. 1 Mahendra to the effect that he was close neighbour of Lalit and Surendra at Tau-gail and that they were never joint in mess or property. The learned Munsif has relied on his evidence. But P. W. 1 has admitted that he and the plaintiff No. 1 Naresh worked together in a private firm. Moreover, ihe evidence of P. W. 1 is against the tenor of the admitted tyag patra of 1926 (Ext. A). The learned Additional District Judge has, therefore, disbelieved P. W. 1 Manindra, The trial Court is wrong in holding that the evidence of P. W. 1 has not been challenged. It also fell into error in holding that the defendant No. 1 has admitted that he took permission from the plaintiffs for occupying in the suit premises. What he has said in his evi-dence is that on coming Ho Calcutta from Pakistan he lived in the rented house of the plaintiff-Suresh at Beliaghat. The version of the plaintiff No. 1 as P. W. 2 is that he brought about Rs. 15,000/- from Pakistan, and that he deposited the money in the United Bank in Calcutta. But he has not produced any account book of his alleged coal business nor has he produced even the bank pass book. No document whatsoever in support of his version has been adduced in evidence. The plaintiff No. 1 has admitted that he lived in a rented house at Behala and maintained his family with his income and contributions from his brothers which indicates his financial status. No other plaintiff has deposed in suit. There is no evidence except the uncorroborated testimony of the plaintiff No. 1 to show that the plaintiffs had sufficient funds of their own to acquire the suit property. The learned Additional District Judge has in this state of evidence disbelieved the plaintiffs' case of acquiring the suit property with their own earnings. The learned advocate for the respondents has referred to the decision of the Supreme Court in Union of India v. Moksh Builders and Financiers Ltd., : [1977]1SCR967 in which it has been held that the burden of proof is not static and may shift during the course of evidence. Where evidence has been led by the parties on the question at issue abstract consideration of onus are out of place and the truth or otherwise must always be adjudged on the evidence led by the parties. In this case, the learned Additional District Judge has found and in my view, rightly that the defendant has succeeded in discharging the initial onus of proving the suit property to be the joint family property acquired out of the joint fund of I.,aiit and Surendra and the plaintiffs have failed to produce acceptable proof to controvert the evidence furnished by the defendants. It cannot be said that ihe first appellate Court has misplaced the onus of proof in this case.

8. In my view, the points raised on behalf of the appellants fail and the appeal, therefore, fails. . The appeal is dismissed. No order is made as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //