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2014 DIGILAW 1115 (PAT)

Jaikaran Mehta v. Kishore Mehta

2014-11-11

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The defendants have filed this First Appeal against the Judgment and Decree dated 14.12.1974 passed by the learned Subordinate Judge, Purnea in Title Suit No.115 of 1968 whereby the Court below decreed the plaintiff’s suit for partition to the extent of 1/3rd share in the suit property. 2. The plaintiff respondent filed the aforesaid suit claiming 8 ana share in the property described in Schedule ‘A’ to the plaint and 5 ana 4 pies share, i.e. 1/3rd share in the properties described in Schedule ‘A(1)’ to the plaint and in the alternative, the plaintiff prayed for partition claiming 5 ana 4 pies share, i.e., 1/3rd share in both the scheduled properties. 3. The plaintiffs claimed the aforesaid relief alleging that three sons of Prem Mahton, namely, Amar Singh Mahton, Amrit Singh Mahton and Kunwar Singh Mahton died in the state of jointness and after their death, their sons and grand sons continued as joint. The joint family had possessed joint landed property. The parties to the suit also acquired properties in the name of one member or the other out of the joint family property. Although the plaintiff separated from the defendants but still there is no partition and the parties are cultivating lands according to their convenience. Defendant No.10, 11, and 12 are the brothers of defendant No.1. The plaintiff No.1 and defendant No.1 acquired 34.91 acres land in Mauza Pothia and 10.39 acres in Mauza Mohamadpur in equal share by registered Kabuliyat dated 08.01.1937 through settlement and after settlement, they are coming in joint possession of this settled lands which is described in Schedule ‘A’ to the plaint. The defendant No.1 being the elder member of the joint family was looking after the revisional survey operation who got wrong entry in the record of right. Therefore, the plaintiff filed the suit claiming the aforesaid relief for partition. 4. The defendants Nos.1 and 10 to 12 who are brothers being the four sons out of seven sons of Amar Singh Mahton filed joint contesting written statement. Their case in short is that three brothers were joint and had possessed landed property but contended that all co-owners sold the entire property and then others co-owners left the village except plaintiff No.1 and defendant No.1 and his brothers defendant No.10 to 12. Their case in short is that three brothers were joint and had possessed landed property but contended that all co-owners sold the entire property and then others co-owners left the village except plaintiff No.1 and defendant No.1 and his brothers defendant No.10 to 12. Therefore, the plaintiff No.1 and these defendants took the settlement of lands of Mauza Pothia by two registered Kabuliyat dated 08.01.1937, therefore, the plaintiff has got only 1/5th share whereas 4/5th share is of all these defendants. According to these defendants, there was partition of the suit land taken in settlement between these defendants and the plaintiff No.1 and according to partition, the plaintiffs is coming in possession of 1/5th share whereas these defendants are coming in possession of 4/5th share. 5. The further case of these defendants is that the properties described in Schedule A (1) to the plaint is not the ancestral joint family property. Only lands of khata No.43 and 45 of Mauza Pothia are the joint family properties and other lands described in Schedule ‘A (1)’ of Mauza Pothia are the lands, i.e., comprised within khata No.44, 46 and 47 are the lands of plaintiff No.1 and defendant No.1 and 10 to 12 wherein plaintiff has got 1/5th share and these defendants have got 4/5th share. 6. The further case of these defendant is that these defendants had got settlement of lands of R.S. khata No.311 of Mauza Mohammadpur crossesponding to C.S. khata No.211 and C.S. plot No.430 measuring 6 bigha 14 katha 5 dhur out of their own fund by grant of rent receipt dated 6.9.1953 from Sheikh Qurban and since then they are coming in possession of the same. They had also purchased lands of C.S. khata No.210 plot No.669, 670 to 673 measuring 5 bigha 9 katha 16 dhur of Mauza Mohammadpur by registered sale deed dated 25th October, 1943 from Chutahru Mahton and others and since the date of purchase, these defendants are coming in possession thereof which is their self acquired property. The plaintiff No.1 and these defendants also purchased Kaimi interest of R.S. khata No.364 from Lala Prasad Mahton measuring 10.05 acres of Mauza Mohammadpur by registered sale deed dated 5th February 1968 each having equal share. Therefore, plaintiff No.1 has got 1/5th share only in this purchased property. The plaintiff No.1 and these defendants also purchased Kaimi interest of R.S. khata No.364 from Lala Prasad Mahton measuring 10.05 acres of Mauza Mohammadpur by registered sale deed dated 5th February 1968 each having equal share. Therefore, plaintiff No.1 has got 1/5th share only in this purchased property. It is alleged that the properties described in Schedule ‘A’ and ‘A/1’ are not the joint family property. They also denied the share as claimed by the plaintiff. 7. The defendant No.13, Asharfi Lal Mehta representing the branch of Amrit Mahton filed separate contesting written statement. The main case of this defendant is that the lands measuring 39.91 acres of village Pothia and 10.05 acres of Mohammadpur were acquired out of joint family fund on behalf of the joint family by two registered Kabuliyat dated 8.1.1937 in the name of plaintiff No.1 and defendant No.1 only who were also members of the same joint family. The said joint family also had acquired properties in the name of one member or the other member of the joint family. The lands of village pothia and Maohammadpur originally belonged to the joint family of the parties. In the year 1929, these lands were mortgaged on behalf of the joint family to Misri Prasad Mahton and subsequently mortgage money could not be paid, therefore, in order to satisfy the debt, they sold all the lands to aforesaid Misri Mahton by registered sale deed dated 6.1.1937. Only after two days, i.e., 8.1.1937, the joint family took Raiyati settlement of the aforesaid land by two registered Kabuliyat in the name of plaintiff No.1 and defendant No.1. After settlement, the joint family continued in possession thereof. Neither the plaintiff No.1 nor the defendant No.1 had any separate source of income, as such the properties of Pothia and Mohammadpur are not their self acquired or separate properties. The further case is that there had been no partition between the three branches of Amar Singh, Amrit Singh and Kumar Singh and they are continuing in possession according to their convenience. During revisional survey, this defendant No.13 was minor and taking undue advantage the plaintiff and defendant No.1 fraudulently got all the joint family lands recorded in their name. This defendant has got 1/3rd share in the lands described in Schedule ‘A’ and A/1 of the plaint. 8. During revisional survey, this defendant No.13 was minor and taking undue advantage the plaintiff and defendant No.1 fraudulently got all the joint family lands recorded in their name. This defendant has got 1/3rd share in the lands described in Schedule ‘A’ and A/1 of the plaint. 8. A joint written statement has been filed on behalf of the defendant No.26 and 28. The minor defendants have also filed written statement, all supporting the case of defendant No.1 and 10 to 12 who are the appellants. Defendant No.2 and 3 and 7 to 9 have filed written statement supporting the case of defendant No.13. 9. On the basis of the aforesaid pleadings of the parties, the learned trial Court framed the following issues:– (i) Is the suit, as framed maintainable? (ii) Have the plaintiffs got cause of action for the suit? (iii) Are the plaintiffs entitled to have-/8/- share in the suit properties described in Schedule ‘A’ of the plaint and -/5/4 pies share in the properties described in Schedule A(1) of the plaint or -/5/4 pies share in all the suit properties described in Schedules ‘A and A(1) of the plaint? (iv) Whether there was partition among the three branches of the ancestors of the plaintiffs and defendants, namely, Amar Singh Mahton, Kumar Singh Mahton and Amrit Singh Mahton on 6.1.1937? (v) Whether the lands described in Schedule ‘A’ of the plaint acquired by the plaintiff No.1 and defendant No.1 in equal share through two registered Kabuliyats dated 8.1.1937 from Misri Mahton? (vi) Whether the suit lands described in Schedule A of the plaint acquired from Misri Mahton by virtue of two registered Kabuliyats dated 8/9.1.1937 were partitioned among the plaintiffs and defendant No.1 and 10 to 12 in the year 1938 or they are joint family properties of the plaintiffs and the defendants? (vii) Whether the suit lands of khata No.311 of Mauza Mahammadpur acquired by virtue of settlement from S.K.Quarban Ali and the suit lands of Khata No.312 of Mauza Mohammadpur acquired by virtue of purchase through Kebala dated 25.10.43 are the exclusive properties of the defendant Nos.1 and 10 to 12? (viii) To what relief or reliefs, if any, are the plaintiffs entitled? 10. (viii) To what relief or reliefs, if any, are the plaintiffs entitled? 10. After trial the learned trial Court found that there was no partition among the three branches of Amar Singh Mahton, Kumar Singh Mahton and Amrit Singh nor there was any partition among the plaintiff No.1 and defendant Nos.1 and 10 to 12 with respect to the properties described in registered Kabuliyat ext.6 and 6/A. The plaintiffs and defendant are members of joint Hindu family and the properties described in Schedule ‘A’ and A/1 to the plaint are the joint family properties of the plaintiffs and defendants. The suit lands of khata No.311 of Mauza Mohammadpur acquired by virtue of settlement from Sheikh Kurban and suit land of khata No.312 of Mohammadpur purchased by sale deed dated 25.10.1943 are not the self acquired properties of defendant No.1 and 10 to 12. Accordingly, the trial Court held that the plaintiffs have got 1/3rd share, i.e., 5 ana 4 pies share in the entire suit properties described in Schedule ‘A’ and A/1 to the plaint. 11. The learned senior counsel, Mr. Narayan Singh, for the appellant submitted that the Court below has wrongly decreed the plaintiff’s suit holding that the plaintiff has got 1/3rd share in Schedule ‘A’ properties although in fact the Schedule ‘A’ properties were obtained by plaintiff No.1 and the defendant No.1 and his three brothers, i.e., defendant No.10 to 12. It was not the joint family property. Since five persons obtained the settlement, they all have got 1/5th share, i.e., plaintiff has got 1/5th share and the defendants appellants together have got 4/5th share but the learned Court below granted 1/3rd share to the defendant No.13 also although he never obtained the lands in settlement. According to the leaned counsel, all these properties which were obtained in settlement by two registered Kabuliyat on 8.1.1937 originally belonged to the joint family but because of unable to pay the debt amount, all the joint family members sold the property by executing registered sale deed dated 6.1.1937. When they all sold the property and the settlement was made just two days thereafter wherein the ancestor of the defendant No.13 did not join, there is no question of granting any share to defendant No.13 arises. The defendant No.1 has got six brothers. When they all sold the property and the settlement was made just two days thereafter wherein the ancestor of the defendant No.13 did not join, there is no question of granting any share to defendant No.13 arises. The defendant No.1 has got six brothers. All of them except defendant No.10 to 12 refused to take settlement, therefore, only the defendant No.1 and 10 to 12 took settlement with the plaintiff No.1 and they executed registered Kabuliyat on 8.1.1937. The other brothers of the defendant No.1 have also got no share in the property obtained in settlement by execution of registered Kabuliyat dated 8.1.1937 but the Court below wrongly held that the properties was obtained settlement on behalf of the joint family. 12. The learned counsel further submitted that on the date of selling the property, i.e., on 6.1.1937 all the persons, i.e., all the heirs of three branches were present and executed the sale deed in favour of Misri Mahton but just after two days when settlement was obtained, they refused to take the settlement. Therefore, the registered Kabuliyat was executed by defendant No.1 plaintiff No.1 only. According to the learned counsel, in such view of the matter, it cannot be said that the properties obtained in settlement by execution of registered Kabuliyat are the joint family property. 13. The learned counsel further submitted that the properties obtained in settlement in the year 1953 by these defendants appellants has wrongly been held as joint family property by disbelieving ext.3 on surmises and conjecture. The learned Court below wrongly held that the properties comprises within R.S. khata No.311 of Mauza Mohammadpur is also joint family property. The reasons assigned by the Court below is not acceptable and the Court below has rejected ext.3 on flimsy grounds. According to the learned counsel, this property obtained in settlement in the year 1953 is the self acquired properties of these defendants, therefore, neither the plaintiff nor the other defendants have got any share in this property. 14. The learned counsel further submitted that by registered sale deed dated 25.10.1943, these defendant No.1 and 10 to 12 appellants have purchased the lands of khata No.312 from Chutahru Mahton of Mauza Mohammadpur out of their own income but the Court below wrongly held that it is also joint family property because the defendants failed to prove their separate source of income. The learned counsel submitted that admittedly, the registered sale deed is in the name of these defendants appellants, therefore, the onus was on the plaintiff to prove the fact that out of the joint family inclueous, the property was purchased but there is no pleading in the plaint about what is the extent of income of the joint family and that what was the nucleous of the joint family and whether that joint family nucleous was sufficient to purchase the property in question but the Court below without considering these legal aspect has wrongly held that it is the joint family property. 15. The learned counsel further submitted that it is admitted fact that the parties are cultivating the lands separately since long and the properties are being acquired independently by the parties after 1937 which indicate that there had been partition between the parties and it is not the case that any property has been purchased in the name of the karta. The defendants appellants also adduced evidence in support of the fact that there had already been partition between the parties but the Court below without properly appreciating the evidences wrongly held that there had been no partition. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff’s suit be dismissed and even if it is allowed then the plaintiff is entitled to only 1/5th share in the suit property and defendant No.13 has got no share. 16. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the learned Court below has considered all the material evidences produced by the parties and then recorded the findings. It is admitted fact that none of the parties had got separate source of income, therefore, any property purchased either in the name of one member or the other, it will be presumed to have been purchased out of the income of joint family property. The defendant No.1 who was examined as D.W.10 categorically admitted that he had no separate source of income, therefore, the property purchased in the names of the defendant in the year 1943 is joint family property. The defendant No.1 who was examined as D.W.10 categorically admitted that he had no separate source of income, therefore, the property purchased in the names of the defendant in the year 1943 is joint family property. Like wise the settlement was obtained when the family was joint and, there was no partition, therefore, it will be presumed that the property obtained in settlement in the year 1953 is also joint family property. Likewise, the properties described in Schedule ‘A’ and A/1 have been obtained in settlement on behalf of the joint family, therefore, the said property is also joint family property. The Court below considering all these aspects of the matter has recorded a finding, therefore, the findings needs no interference and the First Appeal is liable to be dismissed. 17. In view of the above contentions of the parties, the points arises for consideration in this Appeal are as follows :– (a) Whether the properties are joint family properties as alleged by the plaintiff or whether there had already been partition between the parties. (b) Whether the plaintiffs have got half share or 1/3rd share in the property described in Schedule ‘A’ and Schedule ‘A/1’ and whether the properties of khata No.311 obtained in settlement in the year 1953 and khata No.312 purchased in the year 1943 are the exclusive property of defendant No.1 and 10 to 12 appellants or these properties are also joint family property. 18. Point No.(a) and (b) :- According to the plaintiff’s case, the three brothers Amar Singh Mahton Kumar Singh Mahton and Amrit Singh Mahton died in the state of jointness whereas according to the defendants appellants, there had been partition among the three co-sharers. The further case is that the defendant No.1 and 10 to 12 separated from the plaintiff and other defendants in mess and property since 6.1.1937, on the date of selling the entire joint family property of Mauza Pothia and Mohammadpur to Misri Lal Mahton. Since there was no joint family property left, the others left the village except plaintiffs and defendant No.1 and 10 to 12. This is the first case of partition pleaded by the defendants and the second pleading regarding partition is that after obtaining the settlement by two registered Kabuliyat in the name of plaintiff No.1 and defendant No.1 and 10 to 12, there was partition between them in the year 1938. 19. This is the first case of partition pleaded by the defendants and the second pleading regarding partition is that after obtaining the settlement by two registered Kabuliyat in the name of plaintiff No.1 and defendant No.1 and 10 to 12, there was partition between them in the year 1938. 19. In support of the fact of partition, the defendants have not examined any witness. Even defendant No.1 who has been examined has not stated anything about partition of the year 1937. In his examination-in-Chief at paragraph 4, he has only stated about the partition of the year 1938 that during life time of Kumar Singh , there was partition between him and his brothers and the plaintiffs. In Mauza Pothia, Kishori was allotted 9 biggha and these defendants were allotted 36 biggha whereas in Mohammadpur, plaintiff was allotted 2.5 biggha and the defendant No.1 and 10 to 12 were allotted 10 bigghas. In view of this evidence, now admittedly there had been no partition of the joint family property between the co-sharers. Although the defendants in the written statement pleaded that there was partition on 6.1.1937 but it is not supported by oral evidence or documentary evidence. 20. It is admitted fact as has been admitted during the course of the argument that the joint family had ancestral landed property about more than 17 bighas. So far partition of the settled land is concerned, there is pleading and evidence of D.W.10. Accordingly, it appears that there is neither pleading nor evidence on behalf of the defendant that the ancestral property was partitioned prior to obtaining settlement of the lands through two registered Kabuliyat. 21. The further fact is that the properties which were obtained in registered Kabuliyat were admittedly sold by all co-sharers jointly by executing registered sale deeds on 6.1.1937. Had there been partition between them, registered deeds should have been executed separately. In such circumstances, now it becomes clear that there was no partition between the co-sharers as alleged by the defendants in the written statements. 22. The property was sold on 6.1.1937 by all the co-sharers and then just after one day, i.e., 8.1.1937, the lands sold were obtained in settlement from Misri Lal Mahton by two registered Kabuliyat executed by plaintiff No.1 and defendant No.1. Therefore, the settlement was obtained when the family was joint. 22. The property was sold on 6.1.1937 by all the co-sharers and then just after one day, i.e., 8.1.1937, the lands sold were obtained in settlement from Misri Lal Mahton by two registered Kabuliyat executed by plaintiff No.1 and defendant No.1. Therefore, the settlement was obtained when the family was joint. So far the case of the defendants that it was their self acquired property is concerned, it may be mentioned here that in the registered Kabuliyat or any other document, there is nothing to show that any amount was paid by them to the landlord for obtaining the settlement. The plaintiff No.1 has been examined as P.W.12 who has stated that the properties were obtained in settlement when the family was joint. Now, therefore, when there was no partition prior to 8.1.1937 and for meeting the maintenance of the family members without payment of any consideration amount, the properties were obtained in settlement by the parties, no categorical finding can be recorded that it is the self acquired property of plaintiff No.1, defendant No.1 and 10 to 12. Further, the registered Kabuliyat have been executed only by plaintiff No.1 and defendant No.1 but according to the defendants, the settlement was obtained by defendant No.10 to 12 also. Admittedly, the defendant No.10 to 12 never executed any kabuliyat nor there is any document in support of the fact that they also obtained settlement. Now, therefore, if it will be held that the lands were obtained in settlement by defendant No.10 to 12 why it cannot be said that the lands was obtained in settlement by the other co-sharers also because the family was joint. Admittedly, the property was mortgaged and because of the fact that the joint family had no sufficient income to repay the debt the property was sold. After selling the substantial part of the property, a little lands were left, therefore, the lands were obtained in settlement. 23. In view of the above facts and circumstances of the case, I find that the properties which were obtained in settlement by execution of registered Kabuiliyat are the joint family property. The finding of the learned Court below on this question, is therefore, hereby confirmed. 24. The case of the defendants appellants is that they have got 4/5th share in these properties obtained in settlement and there was partition between them in the year 1938. The finding of the learned Court below on this question, is therefore, hereby confirmed. 24. The case of the defendants appellants is that they have got 4/5th share in these properties obtained in settlement and there was partition between them in the year 1938. I have found above that there was no partition between the co-sharers and the properties acquired in settlement through the two registered Kabuliyat ext.6 and 6/A are the joint family property then the plaintiff is entitled to 1/3rd share and the defendants are entitled to 1/3rd share jointly. In such circumstances, the claim of the defendant that there was partition and they were allotted 4/5th share cannot be given effect to and cannot be relied upon. 25. The learned counsel for the appellants submitted that the other co-sharers had already left the village and they did not take settlement is concerned, it may be mentioned here that there is no reliable evidence. It is admitted fact as has been found by the Court below in the Judgment and also submitted by the learned counsel for the appellant that more than 17 biggha land remained after selling the joint family property on 6.1.1937 by registered sale deed ext.5A . The question is if anybody left the village for livelihood, can it be said that his right extinguished in the property. The Answer will no ‘no’. Here the peculiar fact is that all the co-sharers executed the registered sale deed, ext.5A, on 6.1.1937 and the property was obtained in settlement on 8.1.1937. Then, how the case of the defendant is believable that after executing the sale deed, they left the village in between 6.1.1937 and 8.1.1937. If they left the village after the settlement then again whether merely because they left the village, their title will be extinguished as in the present case, there is no pleading of auster or adverse possession. 26. The learned counsel for the appellant then submitted that the properties of Khata No.311 of Mauza Mohammadpur have been obtained in settlement dated 6.9.1953 ext.3 but the Court below wrongly held that the rent receipt ext.3 is doubtful only on the ground that if settlement was made in the year 1953 then why the rents prior to the settlement was obtained. It is admitted fact that the settlement was obtained in the name of these defendants only. It is admitted fact that the settlement was obtained in the name of these defendants only. P.W.7, who is son of Bibi Majidan, one of the daughter of Qurban Ali, has stated that he is mother and Qurban Ali has settled the same. This ext.3 does not bear any khata of plot number. According to the plaintiffs, the settlement was obtained on behalf of the joint family. According to the defendants No.1 and 10 to 12, it was obtained by them from Qurban Ali. D.W.10 and D.W.3 have stated that the settlement have been obtained by defendant No.1 and 10 to 12 from Qurban Ali. When it is admitted fact that the rent receipt by which the lands were obtained in settlement in the name of defendant No.1 and 10 to 12, the onus was on the plaintiff to prove the fact that it was obtained in settlement for the purpose of joint family and in fact it was obtained on payment of the joint family fund. It may be mentioned here that the plaintiffs have neither pleaded regarding joint family nucleous nor there is any evidence. When the property is obtained in settlement by defendant No.1 and 10 to 12, it cannot be said that the property is standing in the name of one of the members of the joint family. It is not the case of the plaintiff that these defendants were the Karta. The document is not in the name of only one member. Likewise, the defendant No.10 to 12 are junior most members in the branch of the defendants. In such circumstances, there cannot be any presumption that it was obtained in settlement out of the joint family fund. The learned court below wrongly did not rely rent receipt by which the settlement was obtained from Qurban Ali. It may be mentioned here that in the year 1937, the joint family had got the lands more than 45 acres but the case of the plaintiff is that the joint family had no income so as to repay the debt, therefore, the property were sold. Now, therefore, even if those properties were resettled to the joint family, there cannot be any presumption that the income of the joint family was sufficient so as to obtain the settlement of lands of khata No.311 of Mauza Moahammadpur. Now, therefore, even if those properties were resettled to the joint family, there cannot be any presumption that the income of the joint family was sufficient so as to obtain the settlement of lands of khata No.311 of Mauza Moahammadpur. As stated above, there is no pleading and evidence also regarding income and nucleous. Accordingly, I find that this property is the self acquired property of the defendant No.1 and 10 to 12 only and it is not liable for partition. The contrary finding of the Court below is hereby reversed. 27. The learned counsel for the appellant submitted that the property of kahta No.312 was purchased in the name of defendant No.1 and 10 to 12 by registered sale deed dated 25.10.1943 from Chutahru Mahton, ext.A (1), but the Court below has wrongly held that the said property is also joint family property. On the contrary, according to the learned counsel for the respondent, the appellants had no separate source of income, therefore, the Court below has rightly held that the property is the joint family property. 28. It may be mentioned here that as stated above, there is no pleading about the income of the joint family and the expenses and joint family nucleous. According to the pleadings of the plaintiff, the joint family was unable to pay the debt to Misri Lal Mahton, therefore, the joint family property more than 34 acres was sold to Misri Lal Mahton on 6.1.1937. If there was sufficient income out of the said property and had there been any nucleous, the properties should not have been sold in the year 1937. In such circumstances, there cannot be any presumption that after obtaining settlement, there was sufficient income and there was nucleous and the said nucleous was sufficient enough to purchase the lands of khata No.312 from Chutahru Mahton. Admittedly, the registered sale deed is in the name of defendant No.1 and 10 to 12. 29. It is settled principle of law that a person who assert that the property is joint family property has to prove that there was sufficient nucleous of the joint family out of which the property could have been acquired. In the present case, there is no such pleading. 29. It is settled principle of law that a person who assert that the property is joint family property has to prove that there was sufficient nucleous of the joint family out of which the property could have been acquired. In the present case, there is no such pleading. Moreover, although there was sufficient property of the joint family, from the genealogy itself, it appears that the family was a large family consisting of many members and as stated above, the plaintiff himself made a case that the family was unable to repay the debt, therefore, all the joint family property were sold. Now, therefore, when there was no sufficient income in 1937, how can there be presumption that there was sufficient income in the year 1943 just within six years. The learned Court below has not considered this aspect of the matter. Moreover, the sale deed is not in the name of either karta or in the name of only one member of the joint family. It is in the name of four persons belonging to one branch only. 30. In view of the above discussions, I find that the learned Court below has wrongly held that the property of kahta No.312 purchased by defendant appellant by ext.A(1) is joint family property. I, therefore, find that the property purchased by the appellants of khata No.312 is exclusive property of defendant No.1 and 10 to 12, as such this property was also not available for partition. The finding of the Court below on this question is, therefore, reversed. 31. In the result, this Appeal is allowed in part. The Judgment and Decree of the Court below is modified to the extent that the plaintiff is not entitled to any share in the lands comprised within khata No.311 and 312 which have been held to be the self acquired property of the appellants. In the facts and circumstances of the case, there shall be no order as to cost. ?