Ram Murti Devi v. Reoti Saran — 1984 DIGILAW 377 (ALL)

JUDGMENT B. D. Agarwal, J. 1. THIS is defendant's appeal. 2. THE following pedigree serves to elucidate the relevant facts:- Ram Swarup Reoti Saran (plaintiff) Smt. Ramkali Smt. Kasturi Devi Smt. Ram Murti Devi (D. 1/4) (Dead) (D. 2) Ramesn Behari Shakuntala Chelan Kumari (D. 1/1) (D.1/2) (P. 1/3) Rewati Saran is the son of Ram Swarup from his first wife. The suit was brought by him on April 25, 1966 against the father for partition. The dispute in this second appeal is confined to a house situate within the municipal limits of Bulandhshahr. On the death of his first wife, Ram Swaup remarried. From the second wife he had three daughters, namely, Smt. Ramkali Smt. Kasturi Devi and Smt. Ram Murti Devi. Kasturi Devi predecessed the father leaving behind one son and two daughters. The allegations of the plaintiff Rewati Saran are that he constituted joint Hindu family with his father. There was large ancestral property in the town of Manglore and in Bulandshahr. The plaintiff used to pool his income with that of the father. The property in dispute was acquired from the joint family fund. Accordingly he claimed l/2 share in the aforementioned house by partition. Smt. Ram Murti defendant no. 2 was brought on the record by application dated May 24, 1968. On April 17, 1968 Ram Swarup executed a deed of gift in favour of the defendant no. 2 in respect of the disputed house. The plaintiff claims that this gift is void. Ram Swarup died on October 24, 1972 during the pendency of the suit whereupon his legal representatives were substituted and the plaintiff has amended the plaint claiming that his share is now accelerated to 5/8th in the said house. 3. IN defence, Smt. Ram Murti Devi-defendant no. 2 denied that the plaintiff constituted joint family with the father. It was asserted that there had been separation about 40 years earlier. The plaintiff had been married and the relations between his wife and the mother in law (the step mother of the plaintiff) were strained. The family was not possessed of ancestral property nor was there any poolling of the income. The earning of the plaintiff himself was not adequate. The plaintiff had himself accepted the gift of one house mads by the father during his life time. The house in question belong to Ram Swarup as his self acquired property. The family was not possessed of ancestral property nor was there any poolling of the income. The earning of the plaintiff himself was not adequate. The plaintiff had himself accepted the gift of one house mads by the father during his life time. The house in question belong to Ram Swarup as his self acquired property. He had been Patwari nearly 42 years prior to his retirement in August 1937. The gift in favour of the defendant no. 2 was, it is alleged, validly made and the plaintiff could claim no share in this house. 4. BRIJ Kishore the defendant no. 3 raised the plea that he had been adopted as his son by the plaintiff on December 1, 1962. The registered deed of adoption was executed on May 18, 1964. The deed of adoption was, however, cancelled subsequently by the plaintiff on January 22, 1965 and the plaintiff maintained that the alleged adoption was invalid because the defendant no. 3 was born on February 11, 1947 and since he was over 15 years in age, he could not have been adopted under the law. Ram Swarup the plaintiff's father also filed written statement disputing the claim of the plaintiff on ground that there had been separation in the family and the house in dispute was his self acquired property. He also referred to a will made by him on April 11, 1967 in favour of the defendant no. 2 which, however, was followed by the deed of gift executed on April 17, 1978. 5. THE trial court found that the adoption set up by the defendant no. 3 was invalid. It was claimed that he had been adopted on December 1, 1962. THE date of birth was found to be February 11, 1947, and, therefore, it was concluded that since he was over 15 years of age there could be no valid adoption made. THE plaintiff was found to have been joint with his father. It observed that since the plaintiff and his father constituted a joint Hindu family, the burden of proof lay upon the contesting defendant to show that the disputed house was the self acquired property of Ram Swarup deceased. Oral evidence did not exist to show that this was self acquired property and the inference drawn upon considering the documents was that the property was jointly held. Oral evidence did not exist to show that this was self acquired property and the inference drawn upon considering the documents was that the property was jointly held. THE deed of gift executed in favour of the defendant no. 2 was, therefore, held to be invalid. THE suit was, accordingly, decreed on July 25,1973 for partition allotting 5/8th share to the plaintiff. 6. IN appeal filed by the defendant no 2, the lower appellate court affirmed that there had been no separation between the father and the son and further that the' property in dispute was joint. The finding on the point of adoption of the defendant no. 3 was also confirmed. The appeal has, therefore, been dismissed oh July 30, 1977, Aggrieved the defendant no. 2 has preferred this second appeal. The defendant no. 3 has submitted to the decree and he has no longer agitated the question of his alleged adoption. 7. THE crux of the dispute raised is whether the house in question was joint family property of the plaintiff respondent and his father as alleged by the respondent. Smt. R.D. Gupta learned counsel for the appellant urged that this was the self acquired property of Ram Swarup deceased and the courts below have erred in not taking into account or misconstruing the material aspects of the matter. On the other hand Sri Rajeshwari Prasad assisted by Sri S.N. Agarwal, learned counsel for the respondent no. 1, argued that the courts below have drawn legitimate inference from relevant evidence and there exists no justifiable basis to invoke the jurisdiction of this court in second appeal. Before I pass on to comment on these contentions, reference may use fully be made to certain broad principles of law which are not in controversy before me and are of considerable assistance in arriving at the correct conclusion upon the evidence. (1) A Hindu family is normally presumed to be joint. In the absence of proof of division such is the legal presumption. THE presumption is strong in the case of father and sons. THE strength of the presumption necessarily varies depending on the constitution of the family and other factors. Simply because father and son live and work in different places and own only a joint family house in common, it cannot be said that they do not form a Joint Hindu family. THE strength of the presumption necessarily varies depending on the constitution of the family and other factors. Simply because father and son live and work in different places and own only a joint family house in common, it cannot be said that they do not form a Joint Hindu family. It is for the person alleging severance of the joint Hindu family to prove it vide Mulla : Principles of Hindu Law (15th Ed.)P. 303, S. V. Gupta : Hindu Law (3rd Ed.) Vol. I, page 87). (2) A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed Rewun Pd. v. Radha Beeby, 4 MIA 75 : Suraj Narain v. Iqbal Narain, (1912) 35 Allahabad 8 (P. C). (3) THEre is no presumption that a family, because it is joint, possesses joint property or any property. Where in a suit for partition, a party claims that any particular item of the property is joint family property the burden of proving that it is so rests on the party asserting it (Mulla: Hindu Law P. 304) (\5th ed). THEre is no presumption "that a family has any joint property" and "it cannot be presumed that property found in the possession of any one member is joint family property unless it is shown that the family as such possessed at least some property" the necessity of establishing the existence of a nucleus of joint family property before the property in possession of any one member can be presumed to be joint family property is well recognized (See: Lal Bahadur v. Kannaiya Lal, 29 Allahabad 244 (PC) : Ram Kishandas v. Tunda Mal, (1911) 33 Allahabad 677 (Division Bench). (4) In the case of a joint family the mere existence of a nucleus is not enough to raise a presumption that all the properties possessed by its various members are joint. "THE presumption arises only if the nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable part the money necessary tor acquiring the property in question". Mangal Singh v. Harkesh, AIR 1958 Allahabad 42; Mulla : Hindu Law page 305. "THE presumption arises only if the nucleus is substantial and is such that its yield could provide in whole or at any rate in considerable part the money necessary tor acquiring the property in question". Mangal Singh v. Harkesh, AIR 1958 Allahabad 42; Mulla : Hindu Law page 305. In Appalaswami v. Survanarayana-murti, AIR 1947 P.C. 189 at page 192, it was observed :- "THE Hindu law upon this aspect of the case is well settled. 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 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 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: See- Babubhai Girdhar Lal v. Ujamlal Hargovandas, AIR 1937 Bom. 446 (d): Venkataramayya v. Seehaming, AIR 1937 Mad. 538 (E) : Vythianatha v. Varadaraja, AIR 1938 Mad. 841 (F)." THE Supreme court endorsed this view in Mudigowda Gowdappa Sankh v. Ram Chandra Pevgawda Sankh, AIR 1969 SC 1076 where it was stated :- "THE law on this aspect of the case is well settled. Of course 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 the joint family property must be such as with its aid the property in question could have been acquired. This is however subject to the limitation that the joint family property must be such as with its aid the 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." In Srinivas Krishnarao Kongo v. Narayan Devji Kango, AIR 1954 SC 379 the Supreme Court observed :- "Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. THE important thing to consider is the income which of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well from the foundation of the subsequent acquisitions. THEse are not abstract questions of law, but questions of fact to be determined on the evidence in the case. " This also affirms that proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint. THE burden rests upon any one asserting that any item of property was joint to establish that 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. (5) Property which was originally the separate or self acquired property of a member of a joint family may become joint family property if it has been thrown by the owner into the joint stock of the family. (5) Property which was originally the separate or self acquired property of a member of a joint family may become joint family property if it has been thrown by the owner into the joint stock of the family. But before the separate or self acquired property of a coparcener can be regarded as joint family property it must be proved that the owner had thrown the property into the common stock and done so voluntarily and with the intention of abandoning all separate claims upon it. "Intention must be clear and unequivocal. A clear intention to waive his separate rights must be established and cannot be inferred (i) the mere fact that other members of the family have had the use of such property or, (ii) acts which may have been done merely from kindness or affection. (S. V. Gupta, Hindu Law (3rd Ed.), Vol. I page 106). In Mallesappa Bandeppa Desai v. Desai Mallappa alias Mallesappa, AIR 1961 SC 1268 it was laid that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property." A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending......" (P. 1272) See also Lakkireddi Chinne Venkata Reddi v. Lakkireddi Lakshamma, AIR 1963 SC 1601 : G. Narayana Raju (dead) by L. Rs. v. G. Chamaraju, AIR 1968 SC 1276 . Intention on the part of the coparcener to waive his separate right will not be inferred from acts which may have been done from kindness or affection. It is not the mere act of physical mixing with joint family property but the volition and intention to waive special right in it as separate property which counts. 8. LEARNED counsel for the appellant did not seriously dispute the finding of the courts below that the respondent no. 1 and his father constituted joint family. It was submitted that there are circumstances pointing in the direction that the father and son must have separated but then it is argued also that for the purposes of decision in this appeal the finding of the courts below on this point may be accepted as correct. 1 and his father constituted joint family. It was submitted that there are circumstances pointing in the direction that the father and son must have separated but then it is argued also that for the purposes of decision in this appeal the finding of the courts below on this point may be accepted as correct. The appellant is the step sister of the respondent no. 1. The mother of the respondent no. 1 died when he was barely eight years old. Ram Swarup remarried and had three daughters from the second wife. Till about 1959 Ram Swarup continued to reside in village Manglore. He had been Patwari until August 1937 when he retired from service. The respondent no. 1 was employed in the civil court at Buland-shahr and was married in or about 1925. There was thus evidently separation in: mess but that does not constitute severance in the status of the joint family. PW Wazir Chandra is the brother-in-law of the respondent no. 1. He deposed,that the father and son were joint and the courts below have accepted his testimony as true. It appears in the year 1958 Ram Swarup made an application to the Rent Control and Eviction Officer, Bulandshahr under Section 3 of the U. P. Act No. Ill of 1947 for permission to sue for eviction against the tenant in occupation then of the house now in dispute. In that connection it was averred from his side that the relations between the wife of the respondent no. 1 on the one hand and her step mother-in-law i. e. the wife of Ram Swarup were strained. The application was allowed on May 25, 1959. The revision filed against this order was dismissed on July 30,1959. Ram Swarup. brought a suit for eviction which ended into a compromise with the tenant on August 25, 1959. The evidence is that on shifting to Bulandshahr subsequent to this decree. Ram Swarup resided in the house in dispute and not in house no. 46 (corresponding to old no. 54) in occupation of the respondent no. 1. It might be said that the averment by Ram Swarup in connection with this proceeding was made with the object to secure eviction of the tenant. In any case I proceed on assumption that there was no severance in the status of joint family between the father and son. 54) in occupation of the respondent no. 1. It might be said that the averment by Ram Swarup in connection with this proceeding was made with the object to secure eviction of the tenant. In any case I proceed on assumption that there was no severance in the status of joint family between the father and son. Admittedly the site of the house in dispute was acquired by purchase on February 19, 1934 from one Syed Mohammad Hatim Ali for consideration of Rs. 1000/- vide Ex. A-1. The deed of sale was registered on March 6, 1934. The vendor was Ram Swarup. There is no dispute that on the land purchased the house in dispute no. 47 (corresponding to old no. 35) was raised besides the house no. 46 (old no. 34) to the immediate south thereof. In other words both these houses are situate upon the same piece of land which was purchased on February 19, 1934 under (he above mentioned deed of sale. The permission to construct was obtained by Ram Swarup as is shown also by the Izajatnama dated July 6, 1935 issued by the Municipal Board vide Ex. A-19. The trial court assumed that the burden lay upon the defendant no. 2 to establish that the property in dispute was self acquired of Ram Swarup deceased on the mere basis that he constituted joint family with the son. It is over looked that no such presumption arises under the law and that unless there be nucleus such as is considered sufficient, the plaintiff-respondent had to make out that the property was joint. The lower appellate court has in the main proceeded on premise that the family was possessed of nucleus and hence it is upto the appellant to establish that the property was self acquired. In passing the lower appellate court observed also on the strength of the application dated February 22, 1965 (Ex. 13) that the income placed in the common stock was also sufficient to enable acquisition of property for the joint family. It has been argued for the appellant and not without force that these observations are not supported from the record. 9. FROM the plaint filed by the respondent no. 1 in this case, it would appear that the averment made with respect to nucleus is confined to paragraph 2. It has been argued for the appellant and not without force that these observations are not supported from the record. 9. FROM the plaint filed by the respondent no. 1 in this case, it would appear that the averment made with respect to nucleus is confined to paragraph 2. All that Is stated therein is that the family was possessed of considerable nucleus in village Manglore and Bulandshahr. This was refutted in the written statement. In the course of evidence the ancestral property referred to is the residential house in village Manglore; half of residential house in Bulandshahr and 29 bighas of occupancy tenancy land in village Manglore. The house property fell to Ram Swarup deceased by partition from his brother as is revealed from the registered deed of partition executed between them on February 25, 1946 vide Ex.1. The division of the cuitivatory land between the two brothers was brought by a decree of the revenue court dated March 28, 1940 which also is on the record. Indisputedly, the house in village Manglore above mentioned remained in occupation of Ram Swarup for residential purposes upto the year 1959, the half portion of the house in Bulandshahr mentioned above was under residential occupation of the respondent no. 1. The courts below have erred in not taking into consideration the nature and the character of the alleged ancestral property and in ommitting to take into account the material fact that none of these two houses yielded any income to the family. It is enough that these houses were in existence from the time of the ancestors or that Ram Swarup got them in partition from his brother. There is no evidence as to these houses yielding any income at the material period. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be nucleus out of which acquisitions could be made, even though it might be of considerable value-vide AIR 1954 Supreme Court 379 at page 383 (supra). The courts below also overlooked that in the occupancy tenancy holding the respondent no. 1 could not claim interest by birth. His interest therein could accrue only by success. It was not correct to have bracketted this also as forming part of the joint family nucleus. 10. The courts below also overlooked that in the occupancy tenancy holding the respondent no. 1 could not claim interest by birth. His interest therein could accrue only by success. It was not correct to have bracketted this also as forming part of the joint family nucleus. 10. FACED with this situation so far as the point of the alleged nucleus is concerned, Shri Rajeshwari Prasad laid emphasis upon alleged blending of income between the father and son. The basis adopted in this behalf by the lower appellate court is the application dated February 22,1965 Ext. 13. I will pass on to this a little later. It was urged that both the courts below observed that the respondent no. 1 the plaintiff denied that the disputed house was the self acquired property of his father and as against this no oral evidence was adduced for the appellant the defendant no. 2 to show that the house was self acquired property of Ram Swarup deceased. This in my view is a mere superficial reading of the evidence placed on the record. The case cannot be decided on mere ipse dixit of interested parties. The appellant aged about 60 years has for that matter also given her version on oath including that the disputed house was self acquired property of her father and that there was no pooling of income at any stage. This, however, is not a matter to be decided on the basis of oath against oath. The crucial fact is that there is not an iota of evidence suggesting the quantum or occasion for contribution by the appellant if any, to the earning of Ram Swarup. There is not a word stated any where pointing that this was the income of the respondent no. 1 or that he required this much for expense on self and the family consisting of his wife and three daughters or that this is the amount which he remitted or passed over to the father. In his deposition the respondent no. 1 has not maintained that he pooled his earning with that of his father. The pleading is utterly vague on the subject. The court below has not borne in mind that Ram Swarup served as Patwari for the long tenure of nearly 42 years before his retirement in August, 1937. In February, 1934 he was obviously on the verge of retirement. The pleading is utterly vague on the subject. The court below has not borne in mind that Ram Swarup served as Patwari for the long tenure of nearly 42 years before his retirement in August, 1937. In February, 1934 he was obviously on the verge of retirement. It is not difficult to imagine his own earning in those pre-war days under the then prevailing system of land tenure. The respondent no. 1 was in his turn a junior official in service in the civil court and posted in Bulandshahr. He was married at an early age in 1925. There is force evidently in the contention for the appellant that the respondent used to be financed substantially by the father from time to time and not vice versa. On January 25, 1965 Ram Swarup admittedly executed a registered deed of gift in favour of respondent no. 1. This gift was in respect of house no. 46 (corresponding to old No. 34) situate in Bulandshahr by the side of the disputed house no. 47 (Old No. 35) the house in village Manglore and plot No. 141 comprising the area of three Bighas situate in village Manglore. House No. 46 (corresponding to old No. 34) was, it will be recalled, as mentioned above, built upon the portion of the land purchased on February 19, 1934 by Ram Swarup. The house in village Manglore covered under the deed of gift was the ancestral house which Ram Swarup got in partition from his brother in 1946. Plot No. 141 was the self acquired cultivatory land of Ram Swarup; it is not included among the plots comprised in the partition decree dated March 28, 1940 in the proceedings between himself and his brother. Reoti Saran respondent no. 1 admits in his deposition that this deed of gift by the father was executed with his approval. The respondent no. 1 in other words accepted the gift. This admission by conduct on the part of the respondent no. 1 speaks strongly in my opinion against the theory now set up by him that the property in dispute was acquired from the joint family fund. The source of acquisition pertaining to the house No. 46 (old No. 34) covered under the deed of gift is admittedly the same as that of the disputed house. 1 speaks strongly in my opinion against the theory now set up by him that the property in dispute was acquired from the joint family fund. The source of acquisition pertaining to the house No. 46 (old No. 34) covered under the deed of gift is admittedly the same as that of the disputed house. If Ram Swarup was competent to make gift in respect of the house No. 46, it does not appear that there is any thing to the contrary which prevented him from making gift of the other house in dispute bearing No. 47. The deed is clearly of gift and not relinquishment on the part of Ram Swarup. The lower appellate court attached importance to observing that in this instrument there is no recital expressly made to the effect that the property in question was self acquired. This, it would appear. is implicit in the nature of the transaction. It is argued that since the house No. 46 was in the name of the father, he may have made the gift to avoid dispute in future. No such explanation is advanced by the respondent no. 1 in the plaint or his deposition. In paragraph 10 of the plaint the narration made by him is that the gift was for the sake of his consolation. The source of acquisition relating to,both these houses being identical, it is of considerable significance to note that the respondent no. 1 did not hesitate to take in gift from his father a part of this property for himself. He is however, agitated of gift executed by the father in respect of the other part only since the same is in favour of the appellant who happens to be the step sister of the said respondent. It is manifest that the respondent no. 1 will have had no grievance if this disputed houses were also included by the father in the gift made in his favour. I would not say as the appellant's counsel argued that there is estoppel arising against the respondent on this account but all the same this admission by conduct, of the respondent is denotive virtually of the true nature and character of the disputed property. 11. REFERENCE for the respondent no. 1 was made to the written statement filed by the respondent no. 1 and his father in original suit No. 201 of 1935 (Ext. 2). 11. REFERENCE for the respondent no. 1 was made to the written statement filed by the respondent no. 1 and his father in original suit No. 201 of 1935 (Ext. 2). That suit was instituted by one Shyam Chandra against Ram Swarup Reoti Saran and two others claiming that the defendants had made purchase of the land lying to the south of his house and had started raising construction thereon which obstructed the Parnalas and Janglas pertaining to his house and also constituted encroachment on a part of his land and hence the relief sought was mandatory injunction besides possession. This is revealed from the certified copy of the plaint of the suit (Ext. 2). Ram Swarup and the respondent no. 1 put in joint written statement. The suit was ultimately compromised on August 28, 1935 vide Ext 4. The argument advanced for the respondent no. I is that in the joint written statement it was admitted that the purchase was made by the defendants nos. 1 and 2 and that they were raising the constructions. This undoubtedly constitutes admission within the meaning of Section 17 of the Evidence Act and is admissible as such as held in Basant Singh v. Janki Singh, AIR 1967 SC 341 . In assessing however, the evidentiary value thereof, the context in which this defence was put in must be taken into consideration. The courts below erred in having omitted altogether to take into account that in that case there was no lis between the father and the son interse. For purposes of that suit, it was of little consequence whether the property was acquired by the defendant no. 1 alone or by the defendants no. 1 and 2 both. Father and son both were interested naturally to save the property against a third person. From the joint written statement filed in this situation it could not be inferred legitimately in altogether different context that the property was admitted as belonging to the joint family. It was wrong to have treated this written statement in any case as conclusive on the strength of other evidence. 12. DURING the pendency of the suit giving rise to this second appeal there was, it appears a reference made to the Arbitration under the order of the trial court. P. W. 2 Wazir Chandra was one of the Arbitrators. It was wrong to have treated this written statement in any case as conclusive on the strength of other evidence. 12. DURING the pendency of the suit giving rise to this second appeal there was, it appears a reference made to the Arbitration under the order of the trial court. P. W. 2 Wazir Chandra was one of the Arbitrators. The reference was made by the trial court on November 30, 1971. An award was given on the same date. The reference was, however, quashed later in Civil Revision No 95 of 1971 on November 1, 1971 at the instance of the defendant no. 3 who assailed it on the ground that he was not made a party to the arbitration proceedings. The courts below have argued that on November 30, 1971 there was a statement recorded by the Arbitrator from the appellant and her father to the effect that they did not assert claim to the house. It has been observed that this constitutes also a strong piece of evidence against the case taken by the appellant. In reply, it has been submitted before me by the appellant's counsel that on the same date the Arbitrators recorded the statement of the respondent no. 1 also vide paper No. 335-A to the effect that he would forego his, claim to the jewellery and the cash. The submission is that it is on the condition of the respondent no. 1 giving up the claim to cash and jewellery that the appellant and her father indicated that they would not pursue the claim over the house. The lower courts have not taken into consideration this statement of the respondent no 1 on paper no. 335-A. It was argued for the respondent no. 1 that the appellant did not get this formally proved even though this is alleged to have formed part of the same transaction concerning the arbitration proceedings. Be that as it may, assuming that paper no. 335 A was not formally proved there can be no denying, in my view, that under the circumstances in which the statement recorded on paper no. 334-A relied for the respondent was given by the appellant and her father, the court should reasonably infer that the parties agreed together that evidence of it should not be given. 335 A was not formally proved there can be no denying, in my view, that under the circumstances in which the statement recorded on paper no. 334-A relied for the respondent was given by the appellant and her father, the court should reasonably infer that the parties agreed together that evidence of it should not be given. To put this in other words, that entire proceedings and the statements given in the course thereof were without prejudice to the claim set up by the other side on merit concerning their respective title to the house. The arbitration did not materialise. It is not open to the respondent no. 1 to fall back upon the statement that may have been given in the course thereof but without prejudice to the right asserted in defence to the suit itself. Section 23 of the Evidence Act provides that in civil cases no admission is relevant if it is made in the circumstances from which the court can infer that the parties agreed together that the evidence of it should not be given. Subsequent to the deed of gift dated January 25, 1965 executed by Ram Swarup in favour of the respondent no. 1 there was an application dated 22dd February, 1965 made by Ram Swarup for mutation vide Ext. 13. The lower appellate court has taken this also as almost conclusive upon the point in controversy. This application was for mutation in respect of plot no. 141 (three Bighas) which was also the subject matter of gift. As I have mentioned above this plot is not included in the partition decree of 1940 in the proceedings between Ram Swarup and his brother apart from what is contained in this application for mutation itself there is no other evidence to establish that this land was ancestral or that it had been acquired from joint family fund. Ram Swarup was recorded in the revenue papers as the sole Bhumidhar thereof. From the application, it would appear, that he wished that this land be recorded in the name of his son during his life time on the basis of the gift which he had executed. The extracts of revenue papers placed on the record reveal that the respondent no. 1 had acquired other cultivatory land also standing in his name. From the application, it would appear, that he wished that this land be recorded in the name of his son during his life time on the basis of the gift which he had executed. The extracts of revenue papers placed on the record reveal that the respondent no. 1 had acquired other cultivatory land also standing in his name. Section 154 (1) of the Zamindari Abolition and Land Reforms Act, 1950 places restriction on transfer by a Bhumidhar. In view thereof a Bhumidhar does not have the right to transfer by gift any such land where the transferee shall, as a result of such gift, become entitled to the land together with the land held by the family in excess of 12.50 acres in this State. A transfer made in contravention of this provision is void and the subject matter of the transfer is to be deemed to have vested in the State Government as provided under Section 163 (2) (a) of this Act. For the appellant, it has been contended, not without force, that in order to avoid this consequence, Ram Swarup and his son adopted the device to indicate through this application for mutation that the land had been held jointly between the father and the son. The significant fact is that in the ordinary course it was not required to be stated in this application that there was other residential property also acquired from joint family fund or the like by the father and the son. This averment appearing in this application is clearly purposive; which lends strength to the contention that this was inserted with the object to make it appear that the respondent no. 1 the donee had pre-existing interest in plot no. 141. Viewed, therefore, in its proper context the averment made in this application concerning the residential house property could not be regarded as furnishing proof in itself despite the impugned factum of the gift accepted by the respondent no. 1 that the house in dispute was held as a joint family asset. It should not also have been overlooked that the house in village Manglore was admittedly ancestral. 13. HAVING regard to the discussion made in the above, the finding recorded by the courts below that the house in dispute was held by Ram Swarup and his son as joint family property is unsupportable. It should not also have been overlooked that the house in village Manglore was admittedly ancestral. 13. HAVING regard to the discussion made in the above, the finding recorded by the courts below that the house in dispute was held by Ram Swarup and his son as joint family property is unsupportable. Under the law, therefore, Ram Swarup was not incompetent to execute the gift of this house as he did in favour of the appellant on April 17, 1968. The adjacent house acquired under the same source had been gifted by him to the respondent no. 1 on January 25, 1965 and this was followed by the impugned gift of the house in dispute made in favour of the appellant. This consequently is the exclusive property of the appellant and the respondent no. 1 could not claim share therein by partition. The suit had, therefore, to be dismissed. The appeal succeeds accordingly. 14. THE appeal is consequently allowed. THE judgment and decree of the courts below are set aside. THE suit shall stand dismissed. Costs on parties. Appeal allowed.