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Madhya Pradesh High Court · body

2001 DIGILAW 646 (MP)

Jhalkanlal v. Nand Kishore Lohiya

2001-08-30

S.P.KHARE

body2001
Judgment ( 1. ) THIS is plaintiffs second appeal under Section 100, CPC. The following substantial question of law was formulated by this Court by order dated 2-9-1998 at the admission of this appeal:- "whether the Lower Appellate Court erred in holding that the suit property is not the joint property of the plaintiff and the defendants and the plaintiff is not entitled for decree for partition ?" ( 2. ) THE facts relevant for the decision of the question referred to above are that Ghasiram had four sons Kudau, Manaklal, plaintiff Jhalkanlal and defendant No. 1 Nand Kishore. Kudau had died during the life time of his father. The father died in the year 1939. He left behind considerable landed property. He was doing money lending business. Manaklal separated from the joint Hindu family in the year 1951 and after a few years he died. Nand Kishore, Jhalkanlal and Ranibabu widow of Kudau filed Civil Suit No. 2-A of 1972 against the heirs of Manaklal for declaration that the property detailed in Schedules a and b of the plaint belongs to the plaintiff and the defendants have no rights in those properties. There was a compromise in that suit and a decree (Ex. P-1) in terms of the compromise was passed on 20-7-1976 and it was declared that the properties described in the Schedules to the plaint except some area of Khasra No. 926 of village Dalpatpur arc of the ownership of the plaintiffs. Defendant No. 1 Nand Kishore is elder brother of the plaintiff and defendant No. 2 Madanlal is son of Nand Kishore. These facts are not in dispute. ( 3. ) THE case of plaintiff Jhalkanlal was that he is continuing jointly with his elder brother defendant Nand Kishore. There has never been any partition between the two brothers. The money-lending licence which was in the name of the father was renewed in the name of defendant No. 1 Nand Kishore as he was elder brother. The lands detailed at the foot of the plaintiff is either the ancestral properly or acquired out of the joint family funds. Some of these properties have been acquired in the name of the defendant No. 1 and some in the name of the defendant No. 2. These properties are in joint possession of the plaintiff and the defendant No. 1. Some of these properties have been acquired in the name of the defendant No. 1 and some in the name of the defendant No. 2. These properties are in joint possession of the plaintiff and the defendant No. 1. There is admission of the defendant No. 1 in the earlier Civil Suit 2-A of 1972 that these lands are the joint properly of both the brothers. The plaintiff claims half share in these properties. According to him the defendant No. 1 is intending to alienate some of the lands and therefore he has filed this suit on 30-10-1986 for declaration that he has half share in these lands and for permanent injunction for restraining the defendants from alienating any of these lands. ( 4. ) THE written statement filed by the defendants is very vague and argumentative. It is stated therein that the manager of a Joint Hindu Family has a right to sell the lands for legal necessity. It is also stated that there is "no Joint Hindu Family" of the plaintiff and the defendant No. 1 without pleading that there has ever been any partition between the two. It is not denied that the properties are either ancestral or acquired out of the joint family money lending business and the funds of the joint family. There is no plea that the property in dispute is separate or self acquired property of the defendant No. 1. The admission in the earlier civil suit that the properties are joint has not been explained. ( 5. ) DURING the trial the evidence of the plaintiff and his two witnesses was recorded. The defendant did not adduce any evidence. He did not enter into the witness-box. ( 6. ) THE Trial Court held that it is not proved that the properties in dispute are the joint family properties. It was noted by the Trial Court in para 2 of its judgment that no evidence has been adduced by the defendant but did not examine its effect on its findings. The First Appellate Court also did not avert to this aspect and confirmed the findings of the Trial Court. ( 7. It was noted by the Trial Court in para 2 of its judgment that no evidence has been adduced by the defendant but did not examine its effect on its findings. The First Appellate Court also did not avert to this aspect and confirmed the findings of the Trial Court. ( 7. ) AFTER perusal of the judgments of both the Courts and the evidence on record and also after hearing the arguments of both the sides this Court is of the opinion that the finding of the two Courts below that the lands in dispute are not the joint family properties of the plaintiff and the defendant No. 1 is highly perverse and unreasonable. The reasons are as follows : Firstly, as already noted there is no plea of the defendants in the written statement that these lands are their self-acquired properties and if so the source from which the money was paid. Secondly, there is no plea in the written statement that there has even been any partition between the plaintiff and the defendant No. 1. They arc real brothers and therefore the presumption would be that they are joint and constitute a coparcenary; thirdly, in Civil Suit No. 2-A of 1972 the plaintiff and the defendant No. 1 filed one plaint jointly and admitted that both are joint and it is only Manaklal who had separated in the year 1951. The admission in the plaint by Nand Kishore operated as estoppel against him and he has not explained this admission in the present suit. The compromise decree in that civil suit specifically declares that the properties described in the Schedule are the joint properties of Jhalkanlal and Nand Kishore. ( 8. ) FOURTHLY, the plaintiff examined himself in the Court and two other witnesses, as P. W. 1 and P. W. 3. Jhalkanlal (P. W. 1) has deposed that there has been no partition between him and Nand Kishore. His father had left behind landed property. The lands in dispute have been acquired out of the joint family funds and joint money lending business. After the death of his father the money-lending licence was renewed in the name of Nand Kishore as he was elder brother and that was done with his (plaintiffs) consent. The lands arc in joint possession of both. The lands in dispute have been acquired out of the joint family funds and joint money lending business. After the death of his father the money-lending licence was renewed in the name of Nand Kishore as he was elder brother and that was done with his (plaintiffs) consent. The lands arc in joint possession of both. He has further deposed that Nand Kishore is now living at Sagar and the lands in dispute are being looked after by him (plaintiff ). He is living in village Dalpatpur. In cross-examination he has admitted that some of the lands and the house which he has dealt with are also the joint family properties. He has admitted that he has sold one house for the marriage of his daughter and that was also the joint family properly. He has separate cloth business. It appears that in cross-examination this witness was confronted with a "fard-Batwara" of the year 1951 when Manaklal had separated from the joint family and he admitted it. It was never the case of the defendant No. 1 in the written statement that there had been a partition between him and the plaintiff in the year 1951. The said document of partition appeals to be in possession of the defendant but it is not been produced by him in the ease as the same is not on record. Jhalkanlal (P. W. 1) has stated that the names of all the brothers are mentioned in the document but there was no partition between him and defendant Nand Kishore. On the basis of this evidence the First Appellate Court has drawn the conclusion that there was partition between the plaintiff and the defendant No. 1. This is mis-reading and mis-interpretation of the evidence and it has led to perverse finding. As the said "fard-Batwara " has not been produced and that has not been exhibited it could not be held that the plaintiff or the defendant No. 1 had also separated by that document. An adverse inference should have been drawn against the defendant No. 1 because of the non-production of that document. ( 9. ) FIFTHLY, there are certain sale-deeds marked as Ex. D-1 to Ex. An adverse inference should have been drawn against the defendant No. 1 because of the non-production of that document. ( 9. ) FIFTHLY, there are certain sale-deeds marked as Ex. D-1 to Ex. D-5 jointly executed both by the plaintiff and the defendant No. 1 in which it has been mentioned that the lands which are being sold were allotted to them in the partition which took between them and Manaklal. These sale-deeds do not go to prove that there had been partition between the vendors inter-se but on the contrary the recitals therein show that they continued to remain joint after the separation of Manaklal. ( 10. ) SIXTHLY, the defendants did not adduce any evidence. The defendant No. 1 did not appear in the witness box. He was Manager of the joint family after the death of the father. He is 17 years older to the plaintiff. Therefore, it was incumbent upon him to come in the witness box and explain how the lands in dispute were acquired and if these were his self-acquisitions from where his separate money came. He alone could throw light on the dark hints. Thus there is no rebuttal of the evidence led by the plaintiff. Illustration (g) to Section 114 of the Evidence Act Provides : "the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it". It was observed by the Privy Council long back in Gurubakch Vs. Gurdial (AIR 1927 PC 230) that it is the bounden duty of a party personally knowing [he whole circumstances to give evidence and to submit to cross-examination. Non-appearance as a witness would be the strongest possible circumstance to discredit the truth of his case. It has been held by this Court in Gulla Vs. Narsingh ( AIR 1970 MP 225 ) that the fact that the defendant does not come himself nor calls any witness to contradict the evidence shows that the facts alleged cannot be denied. What was prima facie against the defendant becomes conclusive by failure to deny. This aspect has been completely side-tracked by the two Courts below and for that reason they have reached the wrong conclusion. ( 11. ) AS the finding of the two Courts below is perverse it is not binding in Second Appeal. Kulwant Kaur Vs. What was prima facie against the defendant becomes conclusive by failure to deny. This aspect has been completely side-tracked by the two Courts below and for that reason they have reached the wrong conclusion. ( 11. ) AS the finding of the two Courts below is perverse it is not binding in Second Appeal. Kulwant Kaur Vs. Gurdial Singh Mann ( AIR 2001 SC 1273 ). There was profit-yielding joint nucleus in the form of the lands and running money-lending business left by the father and therefore, the presumption would be that the acquisitions by the defendant No. 1 were the joint family properly of the plaintiff and the defendant No. 1. It is held in view of the evidence discussed above that the lands in dispute detailed in the plaint are the joint family properties of the plaintiff and the defendant No. 1 and the plaintiff has half share therein. ( 12. ) THE appeal is allowed. The judgment and decree of the Trial Court and the First Appellate Court are set aside. It is declared that the plaintiff has half share in the lands in dispute detailed in the plaint (which will now be fully described in the decree of this Court) and the defendants are restrained from alienating these lands until there is partition between them by metes and bounds either mutually or through Court.