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1997 DIGILAW 243 (PAT)

Kumar Prasad, Munsif, Khagaria v. Shakuntala Devi

1997-03-21

P.K.SARKAR

body1997
JUDGMENT P.K. Sarkar, J. - This Second Appeal is directed against the judgment and decree dated 10.7.1985 passed by Shri Tarkeshwar Narain, Subordinate Judge, Khagaria in T.A. No. 7 of 1981, affirming the judgment and decree dated 31.1.1981 passed by Shri Sheo Kumar Prasad, Munsif, Khagaria in T.S. No. 26 of 1976. 2. At the out set it may be mentioned that the plaintiff-appellant earlier filed a Second Appeal against the judgment and decree dated 31.1.1981 passed by the Munsif, Khagaria in T.S. No. 26 of 1976. The earlier second appeal was numbered as S.A. No. 48 of 1982 and the same was heard by a Bench of this Court, which allowed the aforesaid appeal and set aside the judgment and decree of the lower appellate court dated 21.1.1982 and the case was sent back to the lower appellate court for a fresh decision after hearing the parties on the materials on record in accordance with law. Thereafter the matter was again heard by the lower appellate court and this impugned judgment has been passed on 10.7.1985, whereby the appellate court has again dismissed the appeal against the appellant. Thus this plaintiff's appeal is against the judgment of affirmance. 3. The plaintiff's case may be stated in brief as follows: The plaintiff being the only issue of her father used to get substantial amount from him due to love and affection and with the aforesaid accumulated amount she purchased 5 Bigha 15 Katha and 17 Dhurs of land for a sum of Rs. 500/- by a registered sale deed dated 10.2.1943 from Ayodhya Singh. The plaintiff further stated that her name was mutated and she had been paying rent to the State of Bihar. It is further stated that a part of the land in question was acquired by the State Government and she also received compensation for the same. The plaintiff's claim, therefore, is that the suit property was her self acquired property and has nothing to do with the joint family property. It is further submitted that the sale deed dated 23.6.1976 executed by the defendant 2nd party in favour of defendant no. 1 in respect of 1 Katha and 5 dhurs of Survey Plot No. 740 was a fraudulent document. It is further submitted that the sale deed dated 23.6.1976 executed by the defendant 2nd party in favour of defendant no. 1 in respect of 1 Katha and 5 dhurs of Survey Plot No. 740 was a fraudulent document. The plaintiff got knowledge of the aforesaid transaction only on 30.6.1976 and thus instituted this case thereafter for a declaration that the aforesaid sale deed dated 23.6.1976 executed by the defendant 2nd party in favour of defendent no. 1, was void, inoperative, ineffective and not binding upon the plaintiff. 4. The defendant 2nd party contested the suit in the trial court. The defence was that Jaidev Singh and Nathuni Singh were two brothers. Nathuni Singh died in the year 1936 in the state of jointness with his brother Jaidev Singh and thus Jaidev Singh became the Karta of the joint family. Ayodhya Singh was the Bahnoi of Nathuni Singh and Jaidev Singh. The defendants further contended that Mahtab Singh, grand-father of Nathuni Singh and Jaidev Singh had also one brother, namely, Kallar Singh whose son was Khublal Singh and Khublal Singh's son is Surendra Singh. It is further contended that the family of Sanshi Singh and Khub Lal had lands in Khata no. 130 in the Farzi name of Ayodhya Singh and Khub Lal Singh got a nominal sale deed executed from Ayodhya Singh in respect of his share in the name of Ram Charitra Singh. The defendants also pleaded that Jaidev Singh as the Karta of the family of the defendants 2nd and 3rd party got a nominal sale deed executed by Ramadhya Singh in the name of his wife Parbati Devi in respect of 5 Bigha, 15 Katha and 17 Dhurs of land, which was in possession of the joint family of the defendants 2nd party and 3rd party. 5. It is further stated that in the year 1965 there was partition between the defendants 2nd and 3rd parties, in which 7 Katha 10 Dhurs and odd, besides other lands were allotted to the defendant 3rd party, but the deed was not registered because of some mistake. The defendants pleaded that the plaintiff had no concern whatsoever with the suit land. The defendants pleaded that the plaintiff had no concern whatsoever with the suit land. Thus the contention of the defendants appears to be that the suit property was joint family property and on partition it fell in the share of defendant 2nd party and thus they had all rights to execute the sale deed in question in favour of defendant no.1. 6. As mentioned above, the trial court dismissed the suit holding that the plaintiff failed to prove that the suit property along with other properties were not purchased in the name of Ayodhya Singh from the joint family fund. It was further held that the plaintiff failed to prove her case that the suit property along with other lands were acquired by her from her personal amount received from her father. Thereafter the plaintiff preferred an appeal, which was numbered as T.A. No. 7 of 1981 and the same was heard by Shri Chirangi Singh, Subordinate Judge, Khagaria, who also confirmed the judgment of the trial court as the said Court held that the suit properties appertaining to plot no. 740 was acquired by the joint family fund of the defendents 2nd and 3rd parties and the members of the joint family always remained in joint possession. 7. The plaintiff-appellant thereafter filed a second appeal before this Court, bearing S.A. No. 48 of 1982. During the hearing of the aforesaid appeal it was mainly argued that the lower appellate court did not discuss the matter regarding sufficient nucleus in the joint family at the time of purchase of the suit properties. In that view of the matter this Court set aside the judgment and decree of the lower appellate court and sent back the case for fresh hearing and decision in accordance with law on the materials already available on record. 8. The matter was thereafter heard by Sri Tarkeshwar Narain, Subordinate Judge, Khagaria. The learned Subordinate Judge also after hearing the parties, confirmed the judgment and degree on 10.7.1985 in T.A. No.7 of 1981. Being aggrieved and dissatisfied with the said impugned judgment this appeal has been preferred. 9. No substantial question of law was framed at the time of admission of this appeal. The learned Subordinate Judge also after hearing the parties, confirmed the judgment and degree on 10.7.1985 in T.A. No.7 of 1981. Being aggrieved and dissatisfied with the said impugned judgment this appeal has been preferred. 9. No substantial question of law was framed at the time of admission of this appeal. However, during the ,time of hearing the learned counsel for the appellant submitted that the initial onus lay upon the defendants to prove by cogent evidence that the joint family possessed sufficient nucleus from saving of which the suit property could have been acquired, but this onus has not been discharged by the defendants-respondents. Moreover the question of Benami in the name of Ayodhya Singh has also not been properly gone into by the lower appellate court. 10. The learned counsel for the plaintiff-appellant has submitted that the court below has not properly considered Ext. B series and Ext. C for coming to the question of possession of the parties. It is stated that the statement of boundaries in the Sale deed of the 3rd party is not relevant. Moreover when the sale deed is in the name of lady and she is not a coparcener, so it cannot be said that it is a coparcenery property. This observation of the court below that the lady should prove the aforesaid facts that the properties in question are not joint family properties is also not correct. 11. The learned counsel for the defendants-respondents submitted that the specific point was formulated by the lower appellate court as to whether the suit property along with other land had been purchased by Parbati Devi from Ayodhya Singh out of her personal fund received from her father or mother from time to time, and if so, had she acquired valid title to the same as her own self acquired property and had remained exclusively in its possession throughout, as pleaded by her. 12. The aforesaid point has been discussed by the lower appellate court with reference to the evidence of the witnesses and also the papers filed by the parties and the Court came to the conclusion that the land covered by the sale deed (Ext. 12. The aforesaid point has been discussed by the lower appellate court with reference to the evidence of the witnesses and also the papers filed by the parties and the Court came to the conclusion that the land covered by the sale deed (Ext. 2) including the suit land involved in this appeal had not been acquired by the appellant out of her own personal money, as pleaded by her and so she acquired in no manner any right, title and interest in such land as her self acquired property. 13. The lower appellate court also gave a consistent finding on the point whether the land of suit of plot no. 740 along with the land of other plots had been acquired by or on behalf of the joint family consisting of Jaidev Singh and Nathuni Singh and their sons out of joint family fund and whether their joint family had sufficient nucleus to acquire such property at the relevant point of time, and if so, was Ayodhya Singh and after him is the plaintiff-appellant, Parbati Devi simply a name lender or Benamidar in respect of the same. It was also considered whether there had been any oral partition in the family of the parties in the year 1965 and whether the land in question had been exclusively allotted to the share of the respondents 2nd party by virtue of such partition and if so, had the respondents 2nd party any right to execute the sale deed dated 23.6.1976 in favour of Shakuntla Devi in respect of the land involved in this appeal or in the original suit. These two points were also discussed in detail with reference to the oral and documentary evidence and the Court came to a conclusion that the property in question was joint family property and the joint family has sufficient nucleus. The Court also came to the conclusion that the land in question had never been owned and possessed by the appellant Parbati Devi and she was only a Farzidar. The Court also held that Upendra Narain Singh had right to execute the sale deed in favour of Shakuntla Devi. 14. The Court also came to the conclusion that the land in question had never been owned and possessed by the appellant Parbati Devi and she was only a Farzidar. The Court also held that Upendra Narain Singh had right to execute the sale deed in favour of Shakuntla Devi. 14. It would thus appear that both the' trial court and the lower appellate court reached to a concurrent finding regarding the suit land belonging to the joint family and also held that the .defendants 2nd party had right to execute the sale deed in favour of the defendant 1st party, Shakuntla Devi. 15. It is a settled principle of law that in a case of concurrent finding by the courts below, the High Court should interfere only when there are good grounds for such interference. To corroborate the principle the learned counsel for the respondents cited two decisions of the Supreme Court reported in the cases of Raghunath & another vs. Raju Ramappa Shetty (A.I.R. 1991 SC 1040) and Dudh Nath Pandey vs. Suresh Chandra Bhattasali (A.I.R. 1986 SC 1509). In the latter decision the Supreme Court has held that the High Court in exercise of its power under Section 100 of the C.P.C. cannot make a fresh appraisal of the evidence and came to a different finding contrary to the finding recorded by the First Appellate Court. 16. It is submitted that the similar view was expressed by the Supreme Court in a decision reported in the case of National Insurance Company ltd. vs. State Bank of India ( 1993 (2) SCC 673 ) where the lower appellate court reversed the judgment of the trial court, but in this case the judgment of the trial court has been affirmed by the lower appellate court and hence this present case appears to be on a better footing. Similar view of concurrent finding was also expressed by the Supreme Court in a decision reported in the case of Jahejo Devi & others vs. Moharram Ali (A.I.R. 1988 SC 411). 17. Similar view of concurrent finding was also expressed by the Supreme Court in a decision reported in the case of Jahejo Devi & others vs. Moharram Ali (A.I.R. 1988 SC 411). 17. In view of the aforesaid proposition of law and also in view of the fact that the entire case was well discussed by the trial court and also by the lower appellate court and after remand by this Court the lower appellate court also considered the question of nucleus in detail and found that there was sufficient nucleus to purchase the property in question. I, therefore, do not find any material on record on the basis of which it can be observed that the impugned judgment and order of the lower appellate court deserve to be set aside. The finding of the lower appellate court on the point of nucleus of the joint family property, after the case was sent back for re-hearing, made submissions of the defendants-respondents more convicing. 18. In this connection the decision of the Supreme Court reported in the case of K.V. Narayanaswami Iyer vs. K.V. Ramakrishna Iyer (A.I.R. 1965 SC 289) can be referred wherein it is mentioned as follows :- "Where in fact 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 so to form part of the joint family property, unless the contrary is shown." This also substantiates the findings of the lower appellate court regarding the property procured by the joint family. 19. On a careful consideration of the submissions of both the learned counsel for the appellant and the respondents I am satisfied that no substantial question of law arises in this appeal which requires consideration on the point of fact of nucleus. The matter has already been discussed in detail by• the court of appeal below and those findings do not warrant any interference. 20. In the result the judgment of the lower appellate court dated 10.7.1985 passed in T.A. No. 7 of 1981 is upheld and this Second Appeal is, accordingly, dismissed, but in the circumstances of the case there shall be no order as to cost.