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Madhya Pradesh High Court · body

2012 DIGILAW 269 (MP)

Gopi Nath v. Shiv Prasad

2012-03-06

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. This second appeal has been filed at the instance of one of the plaintiffs against the judgment of reversal passed by learned First appellate Court dismissing the partition suit of the plaintiffs. 2. The admitted facts are that plaintiffs Ramphal and Gopinath are real brothers and they are also real brother of first and second defendants namely Shiv Prasad and Ramgarib. Defendant No.3 Suresh Prasad is the son of first defendant Shiv Prasad. 3. According to the plaintiffs, the suit property, the description whereof has been mentioned in para 3 of the plaint, is the property of HUF and except survey No.245 all the other disputed lands were purchased vide registered sale-deed dated 22.11.1951 from one Rama Govind S/o. Bhola Singh for a consideration of Rs.700/- At the time of purchasing of the said land and earlier to it all the brothers were residing jointly and their father were also residing jointly. For the convenience, the name of first defendant Shiv Prasad was got mutated, being the eldest brother, in the revenue record. From the funds of HUF major portion of suit property was purchased vide registered sale-deed dated 22.11.1951. According to the plaintiff, survey No.245 was purchased in the month of June, 1972 in the absence of first defendant from the income of HUF and it is also the property of HUF. According to plaintiff, although the said property was purchased in the name of first plaintiff Ramphal and mutation was also made on 30.07.1992 in his exclusive name, but, the said property is of HUF. 4. Further the case of the plaintiffs is that after the death of father, the partition took place on 24.12.1983 and the shares were allotted to each coparcener. After partition, the plaintiffs who are real brothers are residing separately while first and second defendants are residing separately. The defendant No.3 who is son of defendants is also residing along with first and second defendants. Further plaintiffs have pleaded that after measuring the entire suit property a partition was effected by meets and bounds but thereafter the defendants tried to interfere in the share which fell in the plaintiffs and hence they have filed a suit for partition praying that they are jointly entitled to half share in the entire suit property and are also entitled to obtain separate possession thereof. 5. 5. The defendants filed a joint written-statement and refuted the plaint averments. In para 2 of the written-statement it has been specifically pleaded that defendant Shiv Prasad at the age of near about 18 years was employed in Police Department in the year 1946 and was not residing in Rewa and was residing in State of Uttar Pradesh where he was serving. He retired in the year 1979 and came back to his native village. Further it has been pleaded that from his own earning and savings the first defendant Shiv Prasad purchased the lands on 22.11.1951 and hence he is exclusive owner of those lands. According to defendants, the money which first defendant was saving from his salary was being sent to his native place by money-order to first plaintiff Ramphal and from the savings of first defendant Shiv Prasad on 22.11.1951 the major portion of suit property was purchased in his name and hence, it is his self-acquired property. The other averments made in the plaint were denied and it has been prayed that suit of plaintiffs be dismissed. 6. Learned Trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit and passed a decree of partition declaring that the plaintiffs are jointly entitled for half share in the suit property and are also entitled for separate possession upto their share. The first appeal which was filed by the defendants has been allowed by the impugned judgment and decree and suit has been dismissed by learned First Appellate Court. 7. In this manner this second appeal has been filed by plaintiff which was admitted on 8.11.1994 on the following substantial questions of law:– “1. Whether the suit land is the joint family property of the parties? 2. Whether the appellants have perfected their title by adverse possession over the suit land? 3. Whether by misplacing the burden of proof by the L.A.C. has vitiated the findings arrived at by her?” 8. Whether the suit land is the joint family property of the parties? 2. Whether the appellants have perfected their title by adverse possession over the suit land? 3. Whether by misplacing the burden of proof by the L.A.C. has vitiated the findings arrived at by her?” 8. Learned counsel for appellant submits that there are necessary pleadings, which are also proved by cogent evidence that except survey No.245 the other disputed agricultural lands were purchased vide registered sale-deed dated 22.11.1951 (Ex.P/1) in the name of first defendant Shiv Prasad who was the eldest among all the brothers and therefore although the land was purchased in the name of first defendant Shiv Prasad, but, it was purchased from the nucleus of HUF. By inviting my attention to sale-deed dated 03.11.1951 (Ex.P/B) it has been contended that HUF land was sold and from the sale price as well as by borrowing some amount from the villagers and from the funds of HUF the disputed land except survey No.245 was purchased only after 18 days on 22.11.1951 vide registered sale-deed Ex. P/1 for a consideration of Rs.700/- and hence on the basis of necessary pleadings and evidence it is proved that except survey No.245 the rest of the suit property was purchased from the funds of HUF and hence it is the property of HUF. 9. So far as survey No.245 is concerned, the contention of learned counsel is that although it was purchased in the name of first plaintiff Ramphal but since it was purchased from the funds of HUF, the said property is also of HUF and thus the entire suit property is of HUF and therefore learned First Appellate Court erred in substantial error of law in dismissing the suit of the plaintiffs. In support of his contention learned Counsel has placed heavy reliance on Article 231 of the Mulla’s Hindu Law. Learned counsel has also placed heavy reliance on Srinivas Krishnaro Kango v. Narayan Devji Kango and others AIR 1954 sc 379 , Appalaswami v. Suryanarayanamurti and others AIR (34) 1947 Privy council 189, Mallappa Girimallappa Betgeri and others v. R. Yellappagouda Patil and others AIR 1959 sc 906 , Baikuntha Nath Paramanik (dead) by his L.Rs. and heirs v. Sashi Bhusan Pramanik (dead) by his L.Rs. and others AIR 1972 SC 2531 and single Bench decision of this Court in Shyamlal & ors. Vs. Babulal & Ors. and heirs v. Sashi Bhusan Pramanik (dead) by his L.Rs. and others AIR 1972 SC 2531 and single Bench decision of this Court in Shyamlal & ors. Vs. Babulal & Ors. 2009(IV) MPJR 134 . Hence it has been prayed that by allowing this appeal, the impugned judgment passed by learned First Appellate Court be set aside and judgment and decree of learned Trial Court be restored. 10. Per contra, learned counsel for the respondents argued in support of the impugned judgment and submitted that it is borne out from the pleadings and evidence that when the lands mentioned in Ex.P/1 were purchased vide registered sale-deed dated 22.11.1951 in the name of first defendant Shiv Prasad, father of plaintiffs and defendants No.1 and 2 was alive however property in question was not purchased in his name but the sale deed (Ex.P/1) is in the name of first defendant, which indicates that suit property is self-acquired property of the first defendant. Learned counsel submits that source of income has also been shown by first defendant to purchase the said property because he was serving in police department in the State of U.P. According to learned counsel merely because a family is a Joint Hindu Family, there cannot be any presumption that property is also HUF and it is for the person who claims it to be of HUF, to prove that the same was purchased from the funds of the HUF and it is not the exclusive property of first defendant. Having failed to plead and prove by the plaintiffs in this regard, learned First Appellate Court did not commit any error in dismissing their suit. In support of his contention, learned counsel has placed heavy reliance on Single Bench decisions of this Court Khemchand & ors. Vs. Batiram & Anr. 2007RN 158 = 2007(II) MPJR 448, Mohan s/o. Sanwaria vs. Mandalal s/o. Sanwaria 2004(4) MPLJ 60 and Purshottam and others vs. Bhagwat Sharan and others AIR 2003 M.P, 128. Hence according to learned counsel for the respondents this appeal has no force and the same be dismissed. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial questions of law No.1 and 2: 12. Before dealing with the rival contentions of parties, it would be apt to go through the law. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial questions of law No.1 and 2: 12. Before dealing with the rival contentions of parties, it would be apt to go through the law. According to Article 231(1) of the Mulla’s Hindu Law there is a presumption of Joint Hindu Family, but, according to sub-para (2) of the said Article there cannot be any presumption that joint family possess a joint property and it is for the person who claims it to be joint has to prove that from the funds of HUF it was purchased. The decisions placed reliance by Shri Awasthy, learned counsel for respondents are correct and it is for the plaintiffs to prove that except survey No.245 the lands which were purchased vide registered sale-deed dated 22.11.1951 (Ex.P/1)were purchased from the funds of HUF. According to me, if it is proved that it was purchased from the funds of HUF irrespective of the fact it was purchased in the name of first defendant, it would be deemed that the same is the HUF property. In this backdrop the pleadings of the parties are required to be seen. In very specific terms the plaintiffs have pleaded that entire suit property is of HUF. Except survey No.245 (which is also of HUF) rest of the suit property was bought from the funds of the HUF, although in the name of first defendant Shiv Prasad, but, it is HUF property. In para 3 of the plaint, the plaintiffs have pleaded that survey No.245, although was purchased in the name of first plaintiff Ramphal in the year 1972 exclusively in his name and it was also mutated in the exclusive name of plaintiff in the revenue record as bhumiswami, but very fairly it has been pleaded by the plaintiffs that because it was purchased from the funds of HUF therefore it is of HUF. Had the intention of plaintiffs been mala fide, it could have been pleaded by them that survey No.245 was exclusively purchased by first plaintiff and it is his self acquired property, but, it has been pleaded that although it has been purchased in the name of first plaintiff but the same was purchased from the nucleus of HUF and hence that survey number is also the property of HUF. 13. 13. In the written-statement it has been specifically pleaded by first defendant that he had gone to serve in the State of U.P. only in the year 1946 as he was employed in the police department. But very intelligently this fact has been concealed and was not pleaded in the written-statement that on which post he was appointed and what was his salary. First defendant when appeared in the witness box as DW1 has admitted in his testimony that he retired from the post of Constable and therefore one can infer that on the post of Constable itself he was taken into service and from that post only he stood retired. There is nothing on record neither in the pleadings nor in the evidence, that what was his salary and whether he was fetching that much of handsome salary so that within a short span of five years only, he could purchase the suit property except survey No.245 on 22.11.1951 for a consideration of Rs.700/- This point should be visualized from this angle also that as per defendant No.1’s own case he was sending the money by money-order to first plaintiff Ramphal and from that money the suit property was purchased but no such money order receipts etc. are on record and apart from this there is no evidence that how much money he was sending every month to first plaintiff. 14. One important fact which cannot be marginalized and blinked is that vide registered sale deed dated 3.11.1951 (Ex.P/8) the property of HUF was sold to one Jageshwar Prasad for a consideration of Rs.260/- and only after 18 days vide registered sale-deed Ex.P/1 dated 22.11 1951 except survey No.245 the rest of the suit property was purchased although in the name of first defendant. Hence it can be gathered that by utilizing funds of Rs.260/- and by managing the other funds by the HUF, except survey No.245 other suit property was purchased. Hence it can be gathered that by utilizing funds of Rs.260/- and by managing the other funds by the HUF, except survey No.245 other suit property was purchased. Needless to say merely because the name of first defendant Shiv Prasad has been mentioned as vendee in the sale-deed Ex.Pl1 it will not make any difference and it cannot be said that it is a self-acquired property of first defendant because burden of proof has been discharged by the plaintiffs by placing cogent evidence and therefore since the ball had gone in the court of defendants, it was for them to prove that it was purchased from the self-acquired money by first defendant Shiv Prasad. 15. I do not find any merit in the contention of Shri Awasthy, learned counsel for respondents that because father was alive and he was Karta of the family, therefore, if the property was not purchased in the name of Karta and has been purchased in the name of first defendant, it would be deemed to be his self-acquired property. The first defendant Shiv Prasad himself has admitted in cross-examination para 9 that because his father was disabled, he (first defendant) was the Karta of the family. Even otherwise also, being eldest amongst all the brothers, one can infer that he was the Karta of the family and therefore it was purchased in his name though it is property of HUF. According to me, there is no hard and fast rule that in the life time of father his eldest son cannot be the Karta of the HUF. The property belonging to joint family is ordinarily managed by father or other senior member for the time being of the family. Needless to say the manager of joint family is called Karta. There is overwhelming evidence that father of the plaintiffs and first and second defendants, was disabled and therefore it can be inferred that father gave up his right of management and first defendant being the eldest member in the family took charge of Karta. In this regard I may profitably place reliance on the decision of Supreme Court Narendrakumar J. Modi v. Commissioner of Income Tax, Gujarat II, Ahmedabad AIR 1976 SC 1953 and also a later decision of Supreme Court M/s. Nopany Investments (P) Ltd. v. Santokh Singh (HUF) AIR 2008 SC 673 . 16. In this regard I may profitably place reliance on the decision of Supreme Court Narendrakumar J. Modi v. Commissioner of Income Tax, Gujarat II, Ahmedabad AIR 1976 SC 1953 and also a later decision of Supreme Court M/s. Nopany Investments (P) Ltd. v. Santokh Singh (HUF) AIR 2008 SC 673 . 16. On going through the registered sale-deed (Ex.P/8), it is gathered that Tilakdhari Ram who was the father of plaintiffs and first and second defendants sold the property which was of HUF to one Jageshwar Prasad for a consideration of Rs. 260/-. It can be inferred that the purchaser would certainly like to get the sale-deed executed by Tilakdhari being the father and hence after selling the HUF property which was lesser area (3 acres), a bigger area (5 acres) has been purchased only after 18 days so that members of HUF can live in a better way. True, the plaintiffs have not examined the person from whom some money was borrowed so as to purchase the lands shown in sale deed Ex.P/1, but, civil case are always being decided on the basis of preponderance and probabilities and because it is borne out from the evidence that by selling property of HUF for Rs.260/- and by managing some more money the lands, description whereof has been mentioned in Ex.P/1 was purchased, I have no scintilla of doubt in my mind in holding that except survey No.245 of the other suit lands which were purchased by registered sale-deed (Ex.P/1) was purchased from the nucleus of HUF. The decisions Srinivas Krishnaro Kango (supra), Appalaswami (supra), Baikuntha Nath Paramanik (supra) and Shyamlal (supra) placed reliance by learned counsel for appellants are squarely applicable in this case. 17. I have already held hereinabove that plaintiffs have pleaded that the land survey No.245 although was purchased in the name of first plaintiff only, but, very fairly it was pleaded by the plaintiffs that the said land was purchased from the funds of HUF although it could have been pleaded by the plaintiffs that survey No.245 is the self acquired property of first plaintiff as it was purchased by him in his name. 18. 18. I would further like to add that where a suit is brought by Hindu to recover property alleging that it is his self-acquired property and the defendant contends that it is joint family property, or where a suit is brought by Hindu on partition of property alleging that it is joint family property and defendant contends it is his self-acquired property, the question would arise that how far the presumption of co-parcenery property can be drawn. Generally speaking unless and until there is proof of division it shall be presumed that family of a Hindu is joint in food, worship and estate. According to me, the presumption that the property is also of HUF is stronger in the case of brothers then in the case of cousins, and the further one goes from the founder of the family, presumption becomes weaker and weaker. The reason is that brothers are for the most part undivided; second cousins are generally separated; and third cousins are for the most part separated. In the present case, the suit of partition has been brought between the brothers and therefore looking to the evidence placed on record since it is borne out that property of HUF was sold vide Ex.P/8 and from consideration of that property as well as by arranging some more funds the property in dispute except survey No.245 was purchased vide sale-deed (Ex.P/1).I have already held hereinabove that defendant No.1/respondent No.1 Shiv Prasad was not having that much of income and he could not save such huge money within a short span of six years only while serving on the post of Constable which is the lowest cadre of the police department to purchase the suit land mentioned in sale-deed (Ex.P/1) and hence I am of the view that although vide sale-deed dated 22 .11.1951 (Ex.P/1) it was purchased in the name of defendant No.1 Shiv Prasad, but, it was of HUF property. 19. The substantial question of raw No.1 and 2 are thus answered that suit property is the property of HUF, but the plaintiffs have not perfected their title over it by adverse possession. Regarding Substantial Question of Law No.3 20. After the evidence has been adduced by both the parties to whom the burden of proof would lie has lost its significance and the evidence which is on record has to be appreciated. Regarding Substantial Question of Law No.3 20. After the evidence has been adduced by both the parties to whom the burden of proof would lie has lost its significance and the evidence which is on record has to be appreciated. Since very successfully the plaintiffs have pleaded and proved that the property in dispute is of HUF, even if learned First Appellate Court has wrongly placed the burden of proof on the respondents it would not weaken the case of plaintiffs because their case is otherwise proved. 21. The substantial question of law No.3 is thus answered accordingly. 22. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of learned First Appellate Court is hereby set aside and the judgment and decree passed by learned Trial Court is hereby restored. Let a decree be drawn up accordingly. Parties are directed to bear their own costs.