Birendra Kumar Singh @ Ram Singar Singh v. Mosst. Kalyani Bhanjo — 1999 DIGILAW 341 (PAT)

JUDGMENT SHIVA KIRTI SINGH, J These two letters Patent Appeals have been heard together and are being disposed of by a common judgment as they arise out of and are directed against a common judgment and decree dated 14-5-1993 passed by a learned Single Judge of this Hon'ble Court in First Appeal No. 155/90 and 190/92. The aforesaid First Appeals also arose out of a common judgment in Title Partition suit No. 414/1987/130/1987 and Title Eviction Suit No. 59/1984/115/1987 respectively. 2. L.P.A. No. 48 of 1993 arises out of eviction suit in which the appellants Birendra Kumar Singh and Amrendra Kumar Singh both sons of late Deo Lal Singh were the plaintiffs. In this suit the plaintiffs claimed that they along with defendant nos. 7 to 12 were exclusive owners of the suit properties described In Schedule I of the plaint. Their case, in short, was that the original defendant no.1 Gauri Shankar Bhanjo (since deceased) had taken a lease of the suit land for a fixed period of lease from the plaintiffs and the defendant nos. 7 to 10 including Deo Lal Singh, Brahamdeo Singh and Deo Raj Singh for a fixed period of 20 years on yearly rental of Rs. 1800/- payable in two equal installments upo , the terms and conditions as mentioned in the registered deed of lease dated 10-9-1963. Relief for eviction of defendants no. 1 to 6 was sought, inter alia, on the ground of expiry of terms fixed by lease deed. The title eviction suit was decreed by the trial court against which the defendant first set preferred First Appeal No. 190/92 which was allowed by the judgment and decree under appeal in L.P.A. No. 48 of 1993,ontwin grounds that notice under section 106 of the Transfer of Property Act was necessary to maintain the suit and that the present suit by the plaintiffs alone is not maintainable in the eye of law because defendant nos. 7 to 10 did not asked for eviction of the lessee rather they objected to the same. 3. In L.P.A. No. 48 of 1993 appellants are Birendra Kumar Singh and his sons who were the plaintiffs in title partition suit no. 7 to 10 did not asked for eviction of the lessee rather they objected to the same. 3. In L.P.A. No. 48 of 1993 appellants are Birendra Kumar Singh and his sons who were the plaintiffs in title partition suit no. 414 of 1987 wherein they have prayed for a decree for partition in respect of plaintiff's share to the extent of four annas of the properties described in Schedule I of the plaint with some other consequential relief’s. In this suit the plaintiffs made a further claim that from the written statement of defendant nos. 1 to 3 and 7 filed in title eviction suit no. 59/84 they came to know about the claim of Yamuna Singh and his sons that Shri Deoraj Singh had executed a deed of will on 18-4-1981 in their favour with respect to his 1/3rd share in joint family properties and subsequently Deoraj Singh had also executed a registered deed of gift dated 6-7 -84 in their favour with respect to his 1/3rd share in the joint family properties. Upon getting such knowledge they filed the partition suit in which their further case is that the aforesaid deeds of will and gift were forged, fabricated, illegal, null and void. According to them the deed of will was inoperative as it was never probated and the deed of gift for undivided share in Joint family properties was void ab initio, illegal and not binding upon other surviving co-larceners. Defendant nos. 8 and 9 filed a joint written statement supporting the case of the plaintiffs. On the other hand, defendant nos. 1 to 3, 7 and 10 pleaded that the Suit was not maintainable, inter alia, on account of previous partition as well as for non inclusion of plot nos. 83 and 165 which they clamed to be joint family properties. This suit was also decreed by the trial court which held the alleged will 'and gift deed to be inoperative and ineffective in law, found the defense of previous partition unacceptable and further held that plot no. 83 had already been given to the plaintiff no. 1 by the joint act of all the co-sharers through a registered deed dated 25-8-64 (Exhibit-5) and plot no. 165 was self acquired property of plaintiff no.1 (being a purchase in his own name) through a registered Sale deed dated 2-12-69 (ext-1 ) for a consideration of Rs. 83 had already been given to the plaintiff no. 1 by the joint act of all the co-sharers through a registered deed dated 25-8-64 (Exhibit-5) and plot no. 165 was self acquired property of plaintiff no.1 (being a purchase in his own name) through a registered Sale deed dated 2-12-69 (ext-1 ) for a consideration of Rs. 5000/- The contesting defendants profaned first appeal no. 155/90 against the judgment and decree in partition suit leading to judgment under appeal in L.P.A. 49/93 by which the learned Single Judge of this Court affirmed all other findings of the trial court except with regard to plot nos. 83 and 165 which were held by him to be joint family properties and hence the decree of the trial court was modified to include a decree for partition of aforesaid two plots also. 4. So far as L.P.A. No. 48/93 arising out of eviction suit is concerned, learned counsel for the appellant submitted that the judgment and decree under appeal is bad in law as well as on facts with regard to both the grounds i.e. (i) requirement of a notice under section 106 of the Transfer of Property Act on account of alleged holding over of the leased property by the lessee and (ii) non-maintainability of the eviction suit at the instance of some of the co-sharers and lessors on the allegations that the other co-sharers and lessors did not ask for eviction rather they objected to the same. 5. So far as requirement of notice under section 106 of the T.P. Act is concerned, the trial court considered the registered deed of lease (Ext-A) and noticed its contents that it was a lease for land measuring 6 kathas of plot no. 270 for a term of 20 years from 10-9-1963. The yearly rent of Rs. 1800/- was agreed to be paid in two installments one by 30th June and second by 31st. December. It was also agreed between the parties that the lessee may use the land in any manner but he would be required to remove the building, structures or construction thereon Within six months after the expiry of the term of lease and the lessee shall be liable to pay the rent for the said period of six months at the same rate. There was also a term of renewal enabling the lessors to allow the lessee to continue on terms as agreed on execution of documents. As per the lease deed the initial period of 20 years was to expire from 10-9-83 and vacant possession was required to be handed over within six month thereafter i.e. latest by 10-3-1984. .Admittedly a notice on 29-6-83 (Ext. F-2) under section 111 of the Transfer of Property Act was served upon the lessee. The trial court held that in the said notice grounds of arrears of rent and sub-letting was also mentioned and hence the notice was not valid so far as those two grounds were concerned in the light of other findings of the trial court but it was valid, although not required so far as it terminated the lease on the ground of expiry of the period of lease fixed by registered lease deed. Taking into notice the fact that a further period of six months after 10-9-83 was granted for vacating the leased land under the terms of the registered lease itself, the learned trial court held that even if a notice under section 106 of the T.P. Act was required, the said requirement was complied with by service of the notice dated 29-6-83 (Ext-F-2). The trial court further held in view of requirement of a fresh execution of documents for further continuation of lease as per the terms of lease deed itself that since there is no case or document that the term of lease was extended after 10-3-84 the lessee will be treated as trespassers after 10-3-84. 6. On the other hand, in the judgment under appeal the learned Single Judge after noticing law laid down by the Apex Court in the case of Smt. Shanti Devi Vrs. Amal Kumar Banerjee (A.I.R. 1981 S.C. 1550) to the effect that when the matter falls to be governed by section 111 (a) of the T.P. Act and not under section 116 of the Act which governs cases of tenant holding over for which it was necessary for the tenant to show that he remained in possession of the premises after determination of the lease and the plaintiff had expressly or by necessary implications assented to his continued possession, there was no question of service of any notice under section 106 of the Transfer of Property Act. But immediately thereafter without giving any finding on the lessee's plea of holding over, merely on noticing such a stand taken by the contesting defendants held that in his opinion, before filing of the suit notice under section 106 of the T P. Act was necessary and in absence of the same the suit is not maintainable. 7. Learned counsel for the appellant rightly submitted that without reversing the relevant findings of the trial court and without giving his own finding about the plea of holding over by express or implied consent of the lessors it could not have been held that notice under section 106 of the T.P. Act was necessary to maintain a suit for eviction under section 111 (a) of the T.P. Act. On the other hand, learned counsel for the respondents 1 to 5 who are heirs of late Gauri Shankar Bhanjo submitted that a case of holding over was made out on the basis of the averments made in the plaint regarding terms of lease deed (Ext. A) itself wherein it was provided that after the expiry of 20 years a further period of six months will be available to the lessee for removal of structures etc. According to him during the aforesaid period of six months the status of a lessee will be that of a month-to-month tenant and in absence of any fresh lease deed the matter will not be governed by section 111 (a) of the T.P. Act but by section 116 of the Act. In support of this proposition of law he referred to well established law that whenever further renewal of lease for any period of time is made after expiry of the original lease and such renewal is not made by a proper deed of lease then the lessee shall be treated as a month-to-month tenant. In support of this proposition of law he referred to well established law that whenever further renewal of lease for any period of time is made after expiry of the original lease and such renewal is not made by a proper deed of lease then the lessee shall be treated as a month-to-month tenant. There can be no quarrel with the aforesaid established proposition of law but the same has no application to the facts of the case because in this case the aforesaid period of six month was also granted by one of the terms of the original registered deed of lease., All the term of the lease deed have to be read together and on so doing it is clear that the further period of six months after the expiry of 20 years was also covered by lease deed itself and hence there was no necessity for execution of any fresh and separate deed of lease for the said period of six months. In the aforesaid context, learned counsel appearing for the respondents 1 to 5 referred to a statement by P.W.6 who is plaintiff no.2 in suit where he has claimed to have received Rs 2,000/- from Gauri Shankar Bhanjo on 15-5-83 on account of rent for the leased land. On that basis he submitted that an amount more than fixed rental was accepted by plaintiff no.2 and hence it would be proper to infer that rent has been accepted for the period beyond that covered by the deed of lease. The said plea has no basis and has to be rejected in absence of any evidence with regard to earlier accounts of rent between the parties. The said statement does not throw any light as regards the period for which the said amount of Rs. 2,000/- was taken as rent. Even the notice to vacate the premises (Ext.F-2) is of a later date. Thus, there is no substance in the submissions of learned counsel for the respondents 1 to 5 and it has to be held that the contesting respondents, the lessee has failed to make out a case of holding over the leased land beyond the term of lease by express or implied consent of the lessors. Thus, there is no substance in the submissions of learned counsel for the respondents 1 to 5 and it has to be held that the contesting respondents, the lessee has failed to make out a case of holding over the leased land beyond the term of lease by express or implied consent of the lessors. The fact that a notice under section 111 of the T.P. Act was sent by the lessors to the lessee well in advance before the expiry of the period fixed by the deed of lease further negatives the aforesaid claim of the respondents lessee. 8. The other ground on which the plaintiffs have been non-suited by the judgment under appeal is that the present suit by the plaintiffs alone is not maintainable in the eye of law because the other co-sharers did not ask for eviction of the lessee rather they objected to the same. Learned counsel for the appellant has assailed this ground firstly on fact. According to him in this case notice for vacating the leased premises was given to the lessee by all the lessors and hence it could not be said that defendant nos. 7 to 10 did not ask for eviction of the lessee rather they objected for the same. In support of this contention, learned counsel referred to paragraph 10 of the plaint where it is clearly mentioned that the plaintiffs and the defendant nos. 7 to 10 and Deoraj Singh now dead, sent a registered notice dated 29-6-83 under section 111 of the T.P. Act to make over vacant possession of lease hold premises after removing the structures etc. over the lease hold premises within the stipulated time but the defendant no.1 in spite of service of notice did not vacate the lease hold premises nor gave any, reply to the said notice. The aforesaid paragraph of the plaint has been accepted by the respondents second set in their written statement as matters of record. over the lease hold premises within the stipulated time but the defendant no.1 in spite of service of notice did not vacate the lease hold premises nor gave any, reply to the said notice. The aforesaid paragraph of the plaint has been accepted by the respondents second set in their written statement as matters of record. No doubt the respondents 2nd set had taken a plea in their written statement that there had been a oral partition in the family sometime after 1984 and thereafter, according to them, the suit property had been exclusively allotted to the share of these defendants and hence the plaintiffs are no longer the owner and landlord of the suit premises and have not legal right to evict the defendants and also they have not taken consent of these defendants for filing the suit. The aforesaid plea of earlier partition stands negatives by the trial court as well as by the learned Single Judge. Thus, the materials on "record show that the defendants second set who were made proforma defendants because they were co-sharers had challenged the title of the plaintiffs on account of alleged previous partition but they had not objected to the eviction of the lessee from the leased premises rather they admitted to be parties to the notice sent to the lessee for handing over possession of the suit premises. 9. To the aforesaid submissions on behalf of the appellants, learned counsel appearing for the respondent lessee, had no reply and on facts nothing could be shown to warrant a finding that defendant nos. 7 to 10 did not ask for eviction of the lessee rather they objected to the same. In view of the aforesaid factual possession, on facts itself it has to be held that the plaintiffs as co-sharers of he leased premises could maintain the present suit for eviction when by a notice the other co-sharers and lessors, defendant nos. 7 to 10 had admittedly asked for eviction of the lessee through a notice and did not object to the prayer for eviction as such but only alleged lack of title in the plaintiffs on account of previous partition but the said allegation relating to lack of title was found to be without any substance. 10. 7 to 10 had admittedly asked for eviction of the lessee through a notice and did not object to the prayer for eviction as such but only alleged lack of title in the plaintiffs on account of previous partition but the said allegation relating to lack of title was found to be without any substance. 10. On legal ground also, learned counsel for the appellants challenged the afore said finding of the learned Single Judge on the basis of law laid down by the Full Bench of this Court in the case of Ram Niranjan Das and another Vrs. Loknath Mandal and others reported in A.I.R. 1970, Patna-1. The question falling for consideration before the Full Bench in this case was whether a suit by a co-sharer for eviction of a trespasser is maintainable in respect of the entire land without impleading the other co-sharers. The Full Bench answered the question in the affirmative and held that the interest of an undivided co-owners or co-sharers must be taken to cover every inch of land which may be the subject matter of dispute as belonging to the co-owners and further held such suit to be maintainable without impleading other co-sharers but the decree will not affect the right of other co-owners vis-a-vis successful plaintiff in a suit against a trespasser. Reliance was placed by learned counsel for the appellant on another Full Bench Judgment of this Court in the case of Sharfuddin Vrs. B.B. Khatiza reported in A.I.R. 1998 Patna 58. In this case the question falling for consideration was whether in a suit for eviction, a co-sharer landlord under the Bihar Buildings (Lease, Rent and Eviction) Control Act could be granted a decree for eviction where one of the co-owners has colluded with or consented to continuance with the tenant. On the basis of a judgment of the Apex Court in A.I.R. 1976 S.C. 2335 (Shri Ram Parsi Jha Vrs. Jaggarnath) the answer was given in affirmative, relying upon conclusion of the Apex Court that a co-owner is as much the owner of the entire property as any sale owner of a property is. 11. In the judgment under appeal, the learned Single Judge appears to have drawn a distinction between the law on the aforesaid subject as decided under the Rent Control Act and those under the General Law such as Transfer of Property Act. 11. In the judgment under appeal, the learned Single Judge appears to have drawn a distinction between the law on the aforesaid subject as decided under the Rent Control Act and those under the General Law such as Transfer of Property Act. While analyzing the law on the subject with regard to general law or under the Transfer of Property Act he came to a conclusion that such a suit by some of the co-owners is not maintainable when the other co-sharers have not asked for eviction or/are against it. In view of the aforesaid judgment cited on behalf of the appellants this proposition of the learned Single Judge does not appear to be free front doubt. However, since on facts it has been found in this case that the other co-sharers who were proforma defendants had also asked for eviction through a notice and as a fact they did not object to the eviction as such but only to the title of the plaintiffs which objection has been negatived by the trial court as well as by the learned Single Judge, it is not necessary to examine this legal question any further and the suit has to be held as maintainable on the basis of aforesaid finding of fact itself. 12. Accordingly, both the grounds on which the learned Single Judge had reversed the judgment and decree in the eviction suit are, with great respect, found to be unacceptable and accordingly L.P.A. No. 48 of 1993 has to be allowed and the judgment and decree of the trial court are therefore restored. L.P.A. No. 49 of 1993. 13. As noticed earlier the judgment and decree in the partition suit was upheld in the First Appeal No. 155/90 save and except with regard to plot nos. 83 and 165 which have been held to be joint family properties available for partition as per judgment of learned Single Judge under appeal. 14. Learned counsel for the appellants challenged the finding of learned Single Judge with regard to plot no. 165 firstly on the ground that in the written statement there is absolutely no pleading that there was sufficient nucleus or any nucleus of the joint family for acquiring plot no. 165 in the year 1969. 14. Learned counsel for the appellants challenged the finding of learned Single Judge with regard to plot no. 165 firstly on the ground that in the written statement there is absolutely no pleading that there was sufficient nucleus or any nucleus of the joint family for acquiring plot no. 165 in the year 1969. According to him existence of such nucleus has not been established by the defendants even by evidence and hence in this case there could be no presumption that the purchase of plot no. 165 in the name of plaintiff Sirendra Kumar Singh was actually a purchase made by and for the joint family. Elaborating this point he contended that apparently the sale deed dated 2-12-69 (Ext.1) was in the name of Birendra Kumar Singh and the ostensible must be deemed to be real unless shown otherwise by the parties alleging so. As per his submissions the learned trial court had correctly appreciated the pleadings and evidence of parties on this account and found that in fact Birendra Kumar Singh had made the said purchase with his own money for which he had shown his separate business and earning, had built a house by taking loan from the Housing Board Department in his own name and was all along coming in 'possession of the said property. On the other hand, as found by the trial court, there was no nucleus of the joint family shown to exist at the time of acquisition of plot no. 165. In view of such materials and findings, according to the learned counsel for the appellants the learned Single Judge erred in holding in just one sentence in paragraph 34 of his judgment that so far plot no. 165 is concerned it could not be accepted that plaintiff no. 1 had purchased the same from his own earnings as there was no sufficient evidence to show that the plaintiffs had sufficient means to acquire such property and moreover the joint family have the nucleus to purchase several properties. The aforesaid finding, according to learned counsel for the appellants, was without proper discussions of the pleadings and evidence led by the parties. 15. The aforesaid finding, according to learned counsel for the appellants, was without proper discussions of the pleadings and evidence led by the parties. 15. On the other hand, on behalf of the respondents 1 to 6 as well as 7 and 10 it was submitted that in paragraph 20 of the written statement of defendant no.7 and in paragraph 6 of written statement of defendant nos. 1, 2 and 3 it had been alleged that plot no. 165 was purchased by joint family fund. According to them the same should be taken as a pleading for existence of sufficient joint family nucleus for the purchase made in the name of plaintiff no. 1 in the year 1969. According to them there was evidence to show existence of sufficient nucleus in the case at the relevant time and hence a presumption was rightly drawn by the learned Single Judge that the purchase will be treated to be by the joint family fund as plaintiff no.1 failed to show that he had sufficient fund of his own to make his own purchase. 16. Looking at the pleadings of the parties, the trial court appears to be correct in holding that there was no pleading regarding existence of joint family nucleus for making the purchase in the particular year. However, the evidence relied upon on behalf of the aforesaid respondents on this point also falls wholly short of proving the existence of sufficient joint family nucleus at the relevant time. The only evidence shown on this point was oral evidence of D.W.I. Yamuna Singh and alleged admissions of P.W. 4 Birendra Kumar Singh plaintiff no.1. In the entire evidence of D.W.I. there is nothing to show that the joint family had sufficient or any nucleus at the relevant time. He has merely asserted that the purchase in question was by the joint family and not by Birendra Kumar Singh. On this point, from the evidence of P.W.4 it is established that by virtue of Kirayanama dated 10-9-63 (Ext.-A) the family was having an income of Rs. 1800/- annually. In cross-examination it has been elicited from him that the joint family had no other source of income except rental from house and land. This witness was examined in 1989 and he has not disclosed as to what was the income from joint family property at the relevant time. 1800/- annually. In cross-examination it has been elicited from him that the joint family had no other source of income except rental from house and land. This witness was examined in 1989 and he has not disclosed as to what was the income from joint family property at the relevant time. On the other hand, he has asserted that he began separate business of his own in 1959-60. He has also given out details of his various business supported by several documents to the effect that he was having his own business prior to 1969. He has asserted that he paid the consideration amount of Rs. 5,000/- from his own money and the factum of such payment by Birendra Kumar Singh has been supported by some other witnesses as noticed by the trial court. Thus, from the perusal of pleadings as well as evidence it is clear that the contesting defendants have failed to allege and prove existence of sufficient nucleus with the joint family. 17. Learned counsel for the appellants has rightly relied upon judgment of the Apex Court in the case of Muddi Gowda Gowdappa Sankh and others Vrs. Ramchandra Rev Gowda Sankh(A.I.R. 1969 S.C. 1076), in support of the proposition that there is no presumption that a Hindu family merely because it is joint, possesses any joint property, The burden of proving any particular property to be joint family property is, therefore, in the first instance upon the person who claims it as co-parcenary 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 joint family is presumed to be joint family property. For raising such a presumption 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 make out and prove that the property was acquired by him without any aid from the family estate. The same view is to be found in an earlier judgment of the Supreme Court in the case of Most. Rukhma Bai Vrs. Lala Laxml Naraln and others (A.I.R. 1960 S.C. 335). The same view is to be found in an earlier judgment of the Supreme Court in the case of Most. Rukhma Bai Vrs. Lala Laxml Naraln and others (A.I.R. 1960 S.C. 335). In view of the aforesaid well established legal proposition and the materials on record it has to be held in this case that the defendants failed to make out and prove that the joint family had sufficient nucleus to purchase plot no. 165 in the year 1969. In such circumstances there was no onus upon plaintiff no.1 to prove that he had acquired the said plot by his own money without the aid of joint family estate. As a fact, however, he has brought both oral as well as documentary evidence on record to show that he had separate income of his own from various business started by him. Hence it has to be held that plot no. 165 belongs to plaintiff no.1 and not to the joint family. 18. So far as plot no. 83 is concerned, the contesting defendants claimed in their' written statement that it was joint family lands measuring 2 kathas 5 dburs which should have been included in plaint. According to them for construction of a house the join family of the parties had to obtain loan from housing Board Department and for the said purpose in the year 1965 a farzi transaction of deed of gift was made by the joint family in the name of plaintiff no. 1 Birendra Kumar Singh with respect to said plot no. 83. The only purpose for executing the said farzi deed was, allegedly, to obtain loan from Housing Board. The said deed of gift is dated 25.8.64 (Ext.5.) According to the plaintiff, by virtue of said deed which was not a farzi transaction he got exclusive title and possession over plot no. 83 and thereafter he invested his own money and also Rs. 20,000/- obtained by him as loan from the Housing Department to construct a house which has always been his own property under his exclusive possession. 19. On this issue, learned counsel appearing for the appellants submitted that the finding of the learned Single Judge to the effect that since the status of this property was originally co-parcenary in nature hence it will not change its character inspite of Ext.5 a registered deed of settlement because the plaintiff no. 19. On this issue, learned counsel appearing for the appellants submitted that the finding of the learned Single Judge to the effect that since the status of this property was originally co-parcenary in nature hence it will not change its character inspite of Ext.5 a registered deed of settlement because the plaintiff no. 1 was a member of co-parcenary, is untenable in law for the reasons that a joint family is capable in law to gift or alienate a part of the co-parcenary property in favour of any person and there is no law that the done or the transfer cannot be a member of the co-parcenary. He has further submitted that since the contesting defendants have alleged the said transaction to be farzi it was incumbent upon them to prove all the essential features or ingredients of a farzi transaction. 20. On this issue certain relevant facts and circumstances as appearing from the records need to be noticed. Admittedly plaintiff no.1 was never a Karta of the joint family. As per evidence he had started his own business in the year 1959-60. Exhibit-5 the deed of settlement which has bee 1 described by the defendants themselves as deed of gift is admittedly a deed executed on behalf of the entire joint family. As per recitals in the said deed the plaintiff no, 1 wanted to construct a house for himself and for that purpose the joint family executed the said deed. Thereafter plaintiff no. 1, as per Ext.11 series, the loan papers, got a loan of Rs. 20,000/- in his own name in the year 1965 and receipts produced by him show that Rs.106/- per month was repaid from June 1968 to January 1969 and thereafter pursuant to a certificate case unpaid loan of Rs. 18,000/- paid in 1987. 21. On behalf of the contesting respondents it was submitted that the transaction through Exhibit-5 should be accepted as a sham and farzi transaction because there was no reason as to why a joint family could give away 2 Kathas 5 dhurs of land to plaintiff no.1 in 1964. According to them even plaintiff no.1 could not give any reason in his evidence. It was further contended on their behalf that D.W.1 Yamuna Singh has said in his evidence that the house was built with the aid of joint family funds and he himself had also contributed Rs. According to them even plaintiff no.1 could not give any reason in his evidence. It was further contended on their behalf that D.W.1 Yamuna Singh has said in his evidence that the house was built with the aid of joint family funds and he himself had also contributed Rs. 5.000/- put he had no documentary evidence to prove the same. 22. It was the case of contesting defendants in their written statement that the deed of gift (Ext.5) was a sham and farzi transaction and they gave out the purpose for such transaction to be requirement of the joint family to obtain loan. The reason for the said transaction is mentioned in Exhibit-5 itself that the plaintiff no.1 was very much desirous for constructing a house of his own. The papers of loan transaction and repayment etc. have been produced by the plaintiffs and there is no documentary or reliable proof that house was constructed with the joint family funds. As a fact in the earlier part of this judgment while considering the issue of plot no. 165 it has already been noticed that the defendants failed to prove existence of sufficient joint family nucleus in the year 1969. There is no material to warrant a finding that such a nucleus existed earlier when the house is said to have been constructed. Hence it is difficult to hold that Exhibit-5 was a sham transaction. The only reason suggested by the defendants that it was done to obtain loan from the Housing Department for the joint family does not stand the test of reason'. For taking such a loan the joint family itself could have applied through the Karta or through any other member. There is nothing on record to show that amongst all the cc-parceners from all the four branches of the family only the plaintiff no.1 was eligible for a loan from the Housing Department. 23. For the purposes of showing a transaction to be sham or farzi the defendants had to show that the original deed (Ext.5) as well as papers relating to the loan and its repayment were kept with the Karta or any senior member of the family but the situation is quite otherwise and all those papers have been brought on record by the plaintiffs. 24. 24. While on this issue it is relevant to notice, the evidence of Bishundeo Narain Singh (D. W.13) a member of the joint family which was referred and relied upon on behalf of the contesting defendants. No doubt in paragraph-6 of his deposition he has claimed that plot no. 83 is a joint family land and family money was also spent in the house built thereon but no details of the alleged joint family expense involved in construction of the said house has been furnished anywhere nor any source for the same has been established. On the other hand, D. W.13 has admitted in paragraph 24 of his deposition that the house was built in the year 1965-66 and thereafter it is in possession and occupation of plaintiff no.1. 25. From Articles 255 and 258 of the Mulla's Hindu Law it is clear that the whole body of co-parceners can alienate co-parcenary property and coparceners may make a gift of their interest with the consent of the other coparceners. No authority was cited on behalf of the contesting respondents to controvert the aforesaid proposition in law and moreover their case is not that exhibit-5 was without authority but that it was a sham and farzi transaction. 26. In view of discussions made above it has to be held that the contesting defendants have failed to prove that Exibit-5 was a sham and farzi transaction. They lave also failed to prove that the house built over plot no. 83 was constructed by and belongs to the joint family. On the contrary the materials on record saw that Exhibit-5 was acted upon and plaintiff no.1 took loan to construct a house thereupon. He paid the loan amount and he has been in exclusive possession over the said house since its construction in 1965-66. 27. In view of aforesaid finding with regard to plot no. 165 as well as plot no. 83, the judgment and decree in First Appeal No. 155/90 is reversed in so far as it modified the judgment and decree dated 24-2-1990 passed by Sub-Judge-IV Patna in Title Partition Suit No. 414 of 1987/130/87 and the judgment and decree passed by the trial court is affirmed. 165 as well as plot no. 83, the judgment and decree in First Appeal No. 155/90 is reversed in so far as it modified the judgment and decree dated 24-2-1990 passed by Sub-Judge-IV Patna in Title Partition Suit No. 414 of 1987/130/87 and the judgment and decree passed by the trial court is affirmed. Similarly judgment and decree dated 14-5-1993 passed in First Appeal No. 190 of 1992 is also reversed and the judgment and decree dated 24-2-1990 passed by Sub-Judge-IV in Title Eviction Suit No 59 of 1984/115 of 1987 is hereby confirmed. Both the Letters Patent Appeals are accordingly allowed. However, in the facts of the case, the parties shall bear their own costs in both the appeals. B.N. AGRAWAL, J.-I agree.