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2003 DIGILAW 609 (GAU)

Upendra Kumar Majumder v. Tapan Majumder

2003-12-23

TINLIANTHANG VAIPHEI

body2003
JUDGMENT T. Vaiphei, J. 1. This Second Appeal is directed against the appellate judgment and decree dated 27.3.2001 passed by the learned Additional District Judge South Tripura, Udaipur in Title Appeal No.9 of 1997 upholding the preliminary decree dated 8.4.1997 passed by the Ld. Civil Judge (senior division), South Tripura, Udaipur in Title Suit No. 30 of 1993. 2. The case of the plaintiff-respondents (hereinafter called "the respondent" for short) is that his father, late Surendra Majumder and the defendant/appellant (hereinafter called "the appellant" for short) are brothers, who used to live in a joint family and sharing joint mess. The said Surendra Majumder and the appellant jointly purchased 7 karris and 14 gandas of land out of the income if their joint family. The appellant also purchased in his own name 1 kani 7 gandas and 2 karas of land for the joint family. Both the brothers also inherited 13 gandas 3 karas and 4 7/32 dhurs of land on the death of their father. Thus, according to the respondent, his father and the appellant became owners of 9 kanis, 15 gandas 1 kara and 4 7/32 dhurs of land having equal share. Out of this joint family land, the appellant sold out land measuring 1 kani 5 gandas to one Narul Islam by the registered sale deed No. 1552 dated 26.3.1955 for his personal purpose. According to the respondent, the land so sold out ought to be deducted from the share of the appellant. Again, a piece of land measuring 0.17 acre "constituting the said joint family property was acquired by the Government while both the appellant and the respondents jointly sold another parcel of land measuring 0.48 acre out of the same joint family property. The total area of land originally held by the respondent and the appellant are shown in schedule "A" to the plaint while the land jointly purchased by the respondents and the appellant but registered in the sole name of the appellant is described in Schedule "B" to the plaint. Schedule "D" to the plaint describes the lands acquired by the Government and also the land jointly sold by the appellant and the respondents. It is the further case of the respondents that the lands described in schedule "C" to plaint were mortgaged to the appellant by the late Surendra Mazumder as security for the repayment of Rs. 5,000 borrowed by him. It is the further case of the respondents that the lands described in schedule "C" to plaint were mortgaged to the appellant by the late Surendra Mazumder as security for the repayment of Rs. 5,000 borrowed by him. This lands, according to the respondents, are to be included in the joint family hotch potch. It is, therefore, contended by the respondents that the lands mentioned in Schedule "E" to the plaint should be accordingly partitioned after deducting therefrom the share of the appellant to the extent of the land sold by him for his personal purpose. Consequently, the respondents-plaintiffs claimed for partition, declaring their appropriate share and also for khas possession. 3. The appellant-defendant contested the suit and filed a written statement in which, it is, inter alia, averred that he along with the late Surendra Mazumder, i.e., father of the plaintiffs, jointly purchased (i) the land measuring 3 kanis, 14 gandas, 2 karas and 12 1/2 dhurs under registered Deed No. 4156 dated 26.10.1957, (ii) the land measuring 1 kani 1 kara and 5 gandas under registered Deed No. 5625 dated 16.11.1959, (iii) the land measuring 4 gandas and 2 karas under registered Deed No. 3864 dated 20.7.1966, and (iv) jointly inherited the land measuring 13 gandas, 3 karas and 4 7/32 dhurs pertaining to new jote No. 63 of Mouja Matabari from their father in equal share. Thus, according to the appellant, both he and the late Surendra Mazumder became the owners of the joint family, i.e., a total of 5 kanis, 13 gandas 1 kranta and 1 dhur in equal share. The appellant denies that the said land measuring 0.82 acre was mortgaged to him by the said Surendra Mazumder and asserts that the same were purchased by him by three separate deeds No. 5292, No. 1934 and No. 4044 at consideration of Rs. 5000 from the said Surendra Mazumder. According to the appellant, after deducting the said lands sold by the said Surendra Mazumder to him, the plaintiffs are entitled to a share of only 15 gandas and 2 karas of land out of the land described in Schedule "A" to the plaint whereas the share of the appellant is to the extent of 6 kanis 5 gandas therein after deducting the land acquired by the Government and the land sold to Niroda Sundari Gope from his shares. The appellant thus prayed that a decree be passed declaring his shares as 6 kanis and five gandas out of the land described in Schedule "A" to the plaint. 4. On the basis of the pleadings, the trial Court framed the following issues: (i) Whether the suit is maintainable in its present form & nature? (ii) Whether the defendant along sold 1 kani 5 gandas of land vide registered sale deed No. 1252 dated 26.3.1955 in favour of one Nurul Islam out of their joint purchased properties? (iii) Whether Surendra Majumder during his life time executed 3 (three) numbers of security bonds in the colour of registered sale deed Nos. 5992 dated 8.10.1971, 1948 dated 11.3.1976 and 4044 dated 29.5.1976 in respect of land of schedule 'C' in favour of defendant? (iv) Whether the land of schedule-'B' is the sole property of defendant or joint property? (v) Whether the plaintiff is entitled to get a share over the suit land, if so to what extent? (vi) Whether the plaintiff is entitled to get decree as prayed for? (vii) What other relief/reliefs the parties are entitled to? 5. The trial court by the judgment dated 8.4.1997 passed a preliminary decree holding that the plaintiffs/respondents are entitled to 50% share, i.e., 3.71 acres out of the land described in Schedule "A" to the plaint. Aggrieved by the same, the appellant preferred an appeal before Ld. Additional District Judge. South Tripura. The plaintiff-respondents also preferred Cross-Appeal against the said judgment and decree before the same court. By the common judgment dated 27.3.2001 in Title Appeal No. 9 of 1997, the Ld. Addl. District Judge partly allowed the two appeals holding that the total partible land measures 3.06 acres wherein the appellant is entitled to a share of 61.27% in the suit property, i.e., approximately 1.87 acre whereas the plaintiff/respondents are jointly entitled to a share of 38.72% in the suit property, i.e., approximately 1.18 acre. 6. Aggrieved by the said appellate judgment the defendant/appellant is now approaching this Court by way, of a second appeal Under Section 100 CPC. It may be noted that while admitting this appeal, the following points were formulated as substantial questions of law vide the order 16.7.2001 : (i) whether the presumption drawn by the Ld. 6. Aggrieved by the said appellate judgment the defendant/appellant is now approaching this Court by way, of a second appeal Under Section 100 CPC. It may be noted that while admitting this appeal, the following points were formulated as substantial questions of law vide the order 16.7.2001 : (i) whether the presumption drawn by the Ld. Courts below that the suit property is a joint family property only because the parties are members of a joint family is correct? (ii) Whether the learned Court below are right in placing on the defendant instead of on the plaintiff, the burden of proving that the purchase was made from the joint fund of the family? 7. In the course of hearing, the appellant was also allowed to urge another ground of attack against the appellate judgment and also the original judgment, namely, whether the findings of the courts below are wholly perverse being based on no evidence. 8. Before-proceeding further, it is worth mentioning the scope of second appeal. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, it is well settled that a finding of fact is not open to challenge even if the appreciation of evidence is palpably erroneous and the finding of facts recorded is grossly erroneous, i.e., however, gross or inexcusable the error may seem, and sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of court of fact. The legal position is succinctly summed up by Sarkar in Code of Civil Procedure, 8th Edn. at page 359, which may be reproduced as under : "....But it should be noted that the following in connection with findings of facts raise questions of law, as has been judicially determined - (1) When there is no evidence at all on which a finding of fact can be based, it raises a question of law. at page 359, which may be reproduced as under : "....But it should be noted that the following in connection with findings of facts raise questions of law, as has been judicially determined - (1) When there is no evidence at all on which a finding of fact can be based, it raises a question of law. (2) The proper legal effect of a proved fact is essentially a question of law; (3) If a finding of fact is arrived at ignoring important relevant evidence, the finding is one bad in law; (4) Construction of document of title or a document which is a foundation of the rights of the parties necessarily raises a pure question of law; (5) The question of admissibility of evidence is a question of law; (6) Placing the onus on a wrong party by the first appellate court would be an error of law which its finding of fact is the result substantially of this wrong placing of onus. 9. It is vehemently contended by Mr. D. Chakraborty, the learned counsel for the appellant that the findings of the Ld. Courts below in respect of Issue Nos. 2 and 4 are wholly perverse and not based on evidence on record and as such, the impugned judgment and decree is not sustainable in law and the Courts below accordingly ought to have dismissed the suit. On the other hand, Shri A. K. Bhowmik, the learned senior counsel appearing for the respondent/plaintiffs supported both findings and decisions of the learned Courts below and urges this Court to dismiss the appeal. 10. In respect of issue No. 2, the trial Court has held that the land measuring 1 kani 5 gandas sold by the appellant to one Narul Islam by registered Deed No. 1252 dated 26.3.1955 constituted the joint family property and the same was sold by him from his share. In reaching this conclusions, the Ld. trial Court took into account the evidence that the said land was purchased along with some other land jointly by the appellant with the late Surendra Mazumder under registered Deed No. 1250 dated 26.3.1955. Secondly, the finding was arrived at from the admission of the appellant himself that he was in the joint family along with his brother, i.e., the said Surendra Mazumder till the death of their father upto 1960. The learned Addl. Secondly, the finding was arrived at from the admission of the appellant himself that he was in the joint family along with his brother, i.e., the said Surendra Mazumder till the death of their father upto 1960. The learned Addl. District Judge concurred with the above findings of the trial Court. The Ld. Addl. District Judge further held that in the aforesaid circumstances, the onus is on the appellant to prove that the land was sold by him for the benefit of the joint family. The Court observed that no such evidence was forthcoming. It was on the basis of these findings that both the Courts below decided that the land measuring 1 kani 5 ganda should be deducted from the share of the appellant. I have carefully examined these concurrent findings of the Courts below along with the pleadings and evidence available on record and have no hesitation to say that the aforesaid findings are arrived at properly. This is not a case in which the courts below took into account inadmissible evidence or ignored material evidence or reached their findings without any evidence on record. I am, therefore, of the view that there is no impropriety or illegality in the co-current findings of fact arrived at by both the Courts below. 11. Coming now to Issue No. 3, the trial Court recorded a finding that total area of 0.82 1/2 acre covered, by Sale Deed Nos. 5992, 1934 and 4044 was actually sold by the late Surendra Mazumder to the appellant between 1971 and 1976 and that the transaction was not by way of security for repayment of Rs. 5000 borrowed by him from the appellant. It is the contention of the plaintiffs/respondents that even though the documents in question recited the transactions as sale, there was oral contract between the parties beyond the deeds that on repayment of the loan, the properties would be re-conveyed by the appellant to the respondents. An attempt is made by the plaintiffs-respondents to support the contention by showing that the compensation amount paid by government for acquiring 0.17 acre was equally shared by the appellant and the respondents and also that both the appellant and the respondents jointly sold out the land measuring 0.48 acre to one Nirode Sundari Gope by registered Deed 1683 dated 27.6.1989. According to the respondents, the aforesaid transactions clearly prove that by the sale deeds Nos. According to the respondents, the aforesaid transactions clearly prove that by the sale deeds Nos. 5992, 1934 and 4044, it was never intended by the late Surendra Mazumder to transfer the said land to the appellant. Both the courts below, however, came to the conclusion that there was no mention in the deeds in question about any agreement for re-conveyance of the said land as claimed by the respondents; that oral contract beyond the written document could not change the character of the transaction ; that the evidence of PW 1 was not reliable since he was not eye witness to the transaction and also he could know the sale of land only in 1991 and that the evidence of PW 2 suffered from inconsistency. On the question of sharing of compensation equally by the appellant and the respondents in respect of the land acquired by the government, the appellate Court held the explanation of the appellant that he allowed the respondents to receive the compensation in equal share with him to avoid complicacy since the land was still recorded in their joint names, to be satisfactory. The appellate Court also accepted similar explanation in respect of the land measuring 0.48 acre jointly sold by the appellant and the respondents. I have gone through the evidence on record. The question is whether there is legally admissible evidence to prove that there was any agreement to show that there was no intention on the part of late Surendra Mazumder to transfer the lands covered by the three Deeds in favour of the appellant since the land were kept as security for repayment of the loan taken by him from the appellant and that the actual intention between the parties was to reconvey the land by the appellant on repayment of the loan by the respondents. I have already referred to the findings reached by both the Courts below which I fully endorse. Moreover, Section 92 of the Evidence Act excludes oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of any written contract. Very recently, the Apex Court has an occasion to deal with the scope and ambit of Sections 91 and 92 of the Evidence Act in Roop Kumar v. Mohan Thedani. The relevant portion of this judgment reads thus : "17. Very recently, the Apex Court has an occasion to deal with the scope and ambit of Sections 91 and 92 of the Evidence Act in Roop Kumar v. Mohan Thedani. The relevant portion of this judgment reads thus : "17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments upon which men's rights depended, were liable to be impeached by loose collateral evidence." In paragraph 19 of the same judgment, it was observed as follows : "19. Sections 91 and 92 apply only when the document on the face of it contains or appears to contain all the terms of the contract. Section 91 is concerned solely with the mode of proof of a document with limitation imposed by Section 92 relates only to the parties to the document. If after the document has been produced to prove its terms under Section 91, provisions of Section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding or subtracting from its terms. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91." The paragraph 21 of the judgment explains the reasons for exclusion of extrinsic evidence, which reads as under : "21. Sections 91 and 92 in effect supplement each other. Section 91 would be inoperative without the aid of Section 92, and similarly Section 92 would be inoperative without the aid of Section 91." The paragraph 21 of the judgment explains the reasons for exclusion of extrinsic evidence, which reads as under : "21. The grounds of exclusion of extrinsic evidence are : (i) to admit inferior evidence when law requires superior would amount to nullifying the law, and (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory." 12. In the instant case, as referred to earlier, both the courts below have held, that oral contract beyond the written contract could not change the character of the transaction. The case of the respondents is that there was an agreement between the said Surendra Mazumder and the appellant to recover the lands in question to the former when he had repaid the loan taken by him to the appellant. This was sought to be proved by the evidence of PW 1 and PW 2. In view of the law laid down by the Apex Court in the aforesaid case, such oral evidence is not admissible in law. Accordingly, there is no impropriety or illegality in the findings of both the courts below that the transaction of Deed Nos. 5992, 1934 and 4044 were outright sale and not a conditional sale. The conclusions arrived at by both the courts below that the explanation given by the appellant in respect of receiving the compensation amount equally by both the appellant and the respondents for acquiring the land by the government and also of the sale of 0.48 acre jointly by the late Surendra Mazumdar and the appellant were satisfactory cannot be said to be irrational and in no way could negative the position taken by the appellant that the said lands solely belonged to him. These findings are reasonable and do not suffer from any perversity so as to warrant interference in a second appeal. 13. These findings are reasonable and do not suffer from any perversity so as to warrant interference in a second appeal. 13. On the question of Issue No. 4 both the courts below gave concurrent findings that the lands shown in Schedule "B" of the plaint was purchased by the appellant in his name from the joint fund for the benefit of the joint family. It is vehemently urged by the counsel for the appellant that no joint family was in existence after the death of his father in 1950 and that the land was purchased by him from his own income, all along under his sole occupation with his name shown in the record of rights. It is the case of the appellant that there is no presumption that a Hindu family merely because it is joint, possesses one joint property and that the burden of proving that any particular property is a joint property is in the first instance upon the party who claims it as joint property. According to the appellant, both the trial, court and the appellate court wrongly placed upon him the burden of proving that the said land is not a joint family property. In support of his contention, the learned Counsel for the appellant cites the decision of the Apex Court in Surendra Kumar v. Phoolchand. On the other hand, the learned counsel for the respondents submits that since the said land was purchased when his father was alive, the burden of proof is upon the appellant to establish that the said land was purchased by him from his own income. It is a settled law that a second appeal would lie if the lower courts saddles the wrong party with the burden of proof. 14. In Mudigowda v. Ramchandra reported in the Apex Court held as follows : "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. 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. 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." Again in Surendra Kumar v. Phoolchand it is further held that: "But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucles from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Both the Courts below have scrutinised the evidence bearing in mind the aforesaid legal position and have rightly come to the conclusion that the property in question is a joint family property. We see no justification for our interference with the said concurrent findings of the two Courts below. The appreciation of evidence has been rightly made bearing in mind the correct legal position. The appellant thus has utterly failed to establish that the consideration money for the property was paid out of his personal funds. In the aforesaid circumstances agreeing with the two courts below we hold that the property was the joint family property and therefore the respondents have 1/3rd share each in the compensation amount. In the aforesaid premises this appeal is devoid of merits and the same is accordingly dismissed but in the circumstances without any order as to costs." 15. In the instant case, as stated earlier, both the Courts below have held that the said land was purchased by the appellant in his name out of the joint family fund for the benefit of the family. Both the courts reached this conclusion on the findings that other lands were purchased under registered deed No. 4720 dated 3.12.1960 (Ext. In the instant case, as stated earlier, both the Courts below have held that the said land was purchased by the appellant in his name out of the joint family fund for the benefit of the family. Both the courts reached this conclusion on the findings that other lands were purchased under registered deed No. 4720 dated 3.12.1960 (Ext. 6) in the name of their father which shows that the father was alive on 3.12.1960. Since the appellant in his own testimony stated that the joint family existed till the death of his father, according to the Courts below, it is obvious that on the date of purchase of the said land, i.e., 26.3.1955, when the father was still alive, there existed their joint family. In the absence of any material to establish that their father died after 1950, the reasoning and finding of the appellate Court cannot be said to suffer from perversity or unreasonableness. The settled law is that a finding of fact is not open to challenge even if the appreciation of evidence is palpably erroneous, howsoever gross or inexcusable the error may seem, and sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of court of fact. The question then is whether on the basis of the above concurrent findings of fact, the appellant has been wrongly saddled with the burden of proving that the said land was not a joint family property and not his self acquired property. Normally, the burden of proving that any particular property is a joint property is in the first instance upon the person who claims it as joint property. However, in this case, once the appellant himself in his deposition categorically stated that the joint family existed upto the time of death of his father, and once there is a finding that the father was alive on 3.12.1960 when a deed was registered in his name, it can be safely presumed that the said land acquired prior to the death of their father constituted a joint property. In that view of the matter, the onus of proving that the said land is not a joint family property is upon the appellant who claims it to be his self acquired property. In the case, the appellant does not discharge this burden of proof. In that view of the matter, the onus of proving that the said land is not a joint family property is upon the appellant who claims it to be his self acquired property. In the case, the appellant does not discharge this burden of proof. Consequently, on the facts and circumstances of this case, I am of the view that there is no infirmity in placing upon the appellant the burden of proving that the land described in Schedule "B" is the self acquired property of the appellant. Hence, both the courts below are right in holding that this land is to be included in the family hotch potch. 16. I have also duly examined the modification made by the appellate court in the decree passed by the Ld. Civil Judge since the same is found to be inconsistent. The land in Schedule "A" cannot obviously be partitioned as of now since it includes lands already sold out by the appellant and the respondents including their predecessor-in-interest either singly or jointly, and the land already acquired by the government. The Ld. Addl. District Judge has rightly decided that the land to be partitioned is the ones described in Schedule "E" to the plaint. No interference is also, therefore, called for in this respect. 17. The appeal has no merit and is liable to be dismissed which I do. No cost. Appeal dismissed