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2015 DIGILAW 1280 (GAU)

On the death of Rajot Kr. Paul v. Subha Rani Paul

2015-10-01

SUMAN SHYAM

body2015
1. Heard Mr. P.K. Kalita, learned counsel appearing for the appellant/ defendant. None appears for the respondent/plaintiff. 2. This second appeal is preferred against the judgment dated 29.09.2004 and decree dated 11.10.2004, passed by the Court of learned Civil Judge (Senior Division), Tezpur, in Title Appeal No. 19/2002 allowing the appeal, thereby reversing the judgment and decree dated 30.09.2002, passed by the learned Trial Court in Title Suit No. 30/2001 whereby the suit filed by the plaintiff was initially dismissed. 3. This second appeal was admitted to be heard on the following two substantial questions of law: “1. Whether the purchase of a property by joint family in the name of an individual member is enough to treat the property as Joint family property, without proving the sufficiency of nucleus of joint family at the time of purchase? 2. Whether a female Hindu can claim partition of dwelling house in view of clear bar of u/s 23 of the Hindu Succession Act?” 4. The brief facts of the case is that the suit land originally stood in the name of the mother of the defendant and the husband of the plaintiff, who were brothers. The said plot of land, measuring 1 katha in total, was purchased in the name of the mother-in-law of the plaintiff, namely, Usha Rani Paul pursuant whereto her name was also duly mutated in respect of the said plot of land. Both the brothers, i.e., Ranjit Kumar Paul (defendant) and Ajit Kumar Paul (husband of the plaintiff) were residing in the suit land sharing a common residence alongwith their mother. 5. Usha Rani Paul died sometime in the year 1982 leaving behind her two aforementioned sons as her legal heirs. After the death of Usha Rani Paul, the names of both the brothers were entered in the records of right in place of original owner and both brothers continued to live in the suit land but in different portions of the houses standing thereon having separate kitchens. The husband of the plaintiff died in the year 1985 leaving behind the plaintiff and the pro forma defendant as his minor daughter. After the death of the husband of the plaintiff, her name was mutated in respect of the suit land in place of her deceased husband and the plaintiff continued to reside in the suit land alongwith her minor daughter for some time. After the death of the husband of the plaintiff, her name was mutated in respect of the suit land in place of her deceased husband and the plaintiff continued to reside in the suit land alongwith her minor daughter for some time. However, due to financial crisis, the plaintiff had to move out from the houses standing over the suit land and shifted to Village – Mislamari (Orang), in the District of Darrang, Assam and continued to live with her brothers as she was unable to look herself alongwith the minor daughter. With the consent of the plaintiff, the defendant had let out the thatched houses earlier under occupation of the plaintiff on the suit land to as many as two tenants for a monthly rent of Rs. 150/- and Rs. 200/-, which amounts used to be collected by the defendant. 6. When the physical condition of the plaintiff deteriorated further and she was in need of financial support, in the month of February 2001, the plaintiff had requested the defendant to give her the house rent collected in respect of her own house but the defendant neither allowed her to collect the house rent nor permitted her to live in the suit land, and on the contrary, had started making construction work over the suit land with a view to grab the entire property. As a result of the same, the plaintiff was compelled to institute the aforementioned suit inter-alia praying for a decree of declaration of right, title and interest and possession as well as right of partition of the suit land in favour of herself and the pro forma defendant, i.e., her daughter, in respect of half portion of the suit land; a decree of partition of the suit land; a decree of permanent injunction and also for a decree for recovery of means profit in the form of house rent collected from the month of March, 2001. 7. On receipt of summons, the defendant had entered appearance in the suit and contested the same by filing his written statement denying the claim of the plaintiff made in the plaint. 7. On receipt of summons, the defendant had entered appearance in the suit and contested the same by filing his written statement denying the claim of the plaintiff made in the plaint. The defendant had taken a stand that although the purchase deed in respect of the suit land reflects the name of their mother Usha Rani Paul, yet the land had actually been purchased from the personal income of the defendant and as such the suit land is a self-acquired property of the defendant for all intend and purpose. On the basis of such pleading, the defendant prayed for dismissal of the suit. 8. Be it mentioned herein that after the filing of the written statement, the original defendant Ranjit Kumar Paul had expired, and therefore, his legal heirs were brought on record by means of substitution. The pro forma defendant being the daughter of the plaintiff did not contest the suit by filing any written statement. 9. Based on the pleading of the parties, the learned Trial Court had framed the following issues: “1. Whether the suit is barred U/s. 154 of the Assam Land & Revenue Regulation? 2. Whether the suit has been properly valued and the proper court fee is paid thereon? 3. Whether there is any cause of action for the suit? 4. Whether the suit is bad for non-joinder of Sri Doly Rani Paul (proforma defendant No. 2) as co-plaintiff? 5. Whether the suit is the self-acquired property of the deceased defendant, Ranjit Kr. Paul by his own money though purchased in the name of his mother Usha Rani Paul? 6. Whether the suit houses thereon are self-acquired property of deceased defendant by his own toil and money? 7. Whether the suit property is the joint ancestral property of te mother of late Ranjit Kr. Paul & late Ajit Kr. Paul? 8. Whether the plaintiff entitled to the reliefs of declaration in half share of suit property? 9. Whether the defendants constructed further houses illegally on the suit land and whether the plaintiff is entitled to decree for demotion thereof and for injunction? 10. Whether the plaintiff is entitled to receive Rs. 350/- per month as rent and for mean profits as claimed? 11. To what other relief or reliefs are the parties entitled? 10. During the course of trial, both the parties had led evidences in support of their respective cases. 10. Whether the plaintiff is entitled to receive Rs. 350/- per month as rent and for mean profits as claimed? 11. To what other relief or reliefs are the parties entitled? 10. During the course of trial, both the parties had led evidences in support of their respective cases. Since the Issue Nos. 5, 6 and 7 were the important issues having a material bearing in the outcome of the plaintiff’s suit, the learned Trial Court had taken the aforesaid issues for discussion together. 11. On an appraisal of the evidence on record and on the basis of the submissions made by and on behalf of the learned counsels for the parties, the learned Trial Court had decided the Issue Nos. 5, 6 and 7 against the plaintiff and in favour of the defendant by holding that the suit property, although purchased in the name of the mother, was actually a self-acquired property of the original defendant Ranjit Kumar Paul and as such the plaintiff could not claim any share in the said property. 12. The aforesaid finding of fact was largely based on an observation that during the course of cross-examination of the plaintiff, she could not say as to from whose earning, the suit land was purchased and on the other hand, the DW – 1 had stated that the suit land was the self-acquired property of her husband, i.e., the deceased defendant. Since the Issue Nos. 5, 6 and 7 were answered against the plaintiff by the learned Trial Court, hence the suit of the plaintiff stood dismissed. 13. Being aggrieved and dissatisfied with the judgment and decree dated 30.09.2002, passed by the learned Trial Court, the plaintiff as appellant had preferred Title Appeal No. 19/2002 in the Court of the Civil Judge (Senior Division), Sonitpur, Tezpur. Upon hearing the learned counsel for the parties and on a reappraisal of the evidence available on record, the learned lower Appellate Court had reversed the findings of the Trial Court in respect of Issue Nos. 5, 6 and 7 by holding that the defendant side had failed to establish that the suit land was the self-acquired property of the original defendant. 5, 6 and 7 by holding that the defendant side had failed to establish that the suit land was the self-acquired property of the original defendant. The learned lower Appellate Court had also held that in view of the claim made by the defendant, the burden of proving and establishing that the suit land was purchased from the earnings of Ranjit Kumar Paul was upon the defendant, which burden they have failed to discharge. On the basis of the aforesaid observation, the Issue Nos. 5, 6 and 7 were decided in favour of the plaintiff/appellant thereby decreeing the suit of the plaintiff. Being aggrieved by the judgment and decree, passed by the learned lower Appellate Court, the defendant No. 1 as appellant has preferred the instant appeal before this Court. 14. Mr. P.K. Kalita, learned counsel for the appellant submits that it has been the consistent stand of the defendant that the suit land was purchased from the earnings of the original defendant, i.e., Ranjit Kumar Paul. Since the Benami Transactions (Prohibition) Act, 1988 was not in force when the suit land was purchased in the year 1966, hence such transaction was not prohibited in the eye of law. He further submits that since the plaintiff side had claimed share on the property on the ground that the suit land is the property of a joint family, hence it was incumbent upon the plaintiff to prove and establish the nucleus of joint family in order to claim the benefit under the system of law. The plaintiff having failed to discharge the burden as aforesaid, there was no justification for the learned lower Appellate Court for reversing the findings of the learned Trial Court recorded in respect of Issue Nos. 5, 6 and 7. In support of his argument, Mr. Kalita relies on a decision of the Hon’ble Apex Court in the case of Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, reported in (1996) 4 SCC 490 . 15. Mr. 5, 6 and 7. In support of his argument, Mr. Kalita relies on a decision of the Hon’ble Apex Court in the case of Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, reported in (1996) 4 SCC 490 . 15. Mr. Kalita further submits that even assuming for the sake of argument that the suit land was the property of Usha Rani Paul, even in that case, after the death of her husband, i.e., Ajit Kumar Paul, the plaintiff could at best be entitled ¼th (one fourth) share in the suit land in her independent capacity and not the half share of the property as has been claimed by her in the suit. 16. I have considered the submissions made by Mr. Kalita, learned counsel for the appellant and have also perused the materials on record. 17. A close scrutiny of the record reveals that the suit land was purchased in the name of the mother of the original defendant and mother-in-law of the plaintiff, viz. Usha Rani Paul by means of registered deed of sale (Exhibit – ‘Ka’). A perusal of Exhibit – 1, jamabandi copy goes to show that the name of Usha Rani Paul was also duly mutated in respect of the suit land. After her death, the suit land was mutated in the name of both her sons, viz., Ranjit Kumar Paul and Ajit Kumar Paul. On the death of Ajit Kumar Paul in the year 1985, the name of the plaintiff being the legal heir was entered in the record of rights pertaining to the suit land. 18. There is no dispute about the fact that Usha Rani Pual died leaving behind her two sons, Ranjit Kumar Paul and Ajit Kumar Paul, who used to reside in the suit land along with their families. There is also no dispute over the fact that after the death of Ajit Kumar Paul, the plaintiff had continued to reside over the suit land with her minor daughter for some time before moving to the place of her brother at Village – Mislamari, under Orang Police Station in Darrang District. Since the suit land was purchased in the name of Usha Rani Paul and her name was also duly mutated in respect thereof, therefore, Usha Rani Paul was evidently the registered owner of the suit land. Since the suit land was purchased in the name of Usha Rani Paul and her name was also duly mutated in respect thereof, therefore, Usha Rani Paul was evidently the registered owner of the suit land. As such, under the law of succession, the property would devolved upon the legal heirs of Usha Rani Paul, i.e., Ranjit Kumar Paul and Ajit Kumar Paul in equal shares. After the death of Ranjit Kumar Paul and Ajit Kumar Paul, their legal heirs would inherit the respective shares of their deceased husband/father. In that view of the matter, there can be no manner of doubt that between the plaintiff and her daughter they would be entitled to declaration of right, title and interest and for recovery of possession in respect of half portion of the suit land in their capacity as the legal heir of Ajit Kumar Paul. 19. Although the defendant has claimed to have purchased the suit land from the personal income of Ranjit Kumar Paul, yet, the said factual position could not be proved and established by the defendant side by leading evidence on record. Under Section 106 of the Evidence Act, the burden to prove the fact that the suit land was in fact purchased from the personal income of the defendant was upon the defendant side which burden they have failed to discharge. Even assuming that some money has been contributed by the defendant at the time of purchase of the suit land, yet, since both the brothers were living in a common residence and enjoying income from the common business of one shop, in the absence of any evidence on record, it would not be possible to readily presume that the husband of the plaintiff had no monitory contribution in the purchase of the suit land. In the absence of categorical evidence lead by the defendant side throw light on the aforesaid aspect, the learned Trial Court could not have decide the Issue Nos. 5, 6 and 7 in favour of the defendant thereby dismissing the suit. 20. In view of what has been discussed herein before, I am of the opinion that the learned lower Appellate Court had rightly decided the Issue Nos. 5, 6 and 7 in favour of the plaintiff there by decreeing the suit. 5, 6 and 7 in favour of the defendant thereby dismissing the suit. 20. In view of what has been discussed herein before, I am of the opinion that the learned lower Appellate Court had rightly decided the Issue Nos. 5, 6 and 7 in favour of the plaintiff there by decreeing the suit. The suit land being the property of the mother-in-law of the plaintiff, her deceased husband certainly would be entitled to half share of the property and such share of the deceased husband of the plaintiff would accordingly devolved upon the legal heirs of Ajit Kumar Paul, i.e., plaintiff and her daughter. 21. As has been indicated above, after the death of Usha Rani Paul, both her son would inherit the suit land in equal share. Accordingly, the plaintiff and her daughter would inherit the share of deceased Ajit Kumar Paul under the provisions of the Hindu Succession Act. As such, there was no further requirement for the plaintiff to prove and establish the existence of the nucleus of the joint family for the purpose of claiming benefit and as such substantial question of law No. 1 framed by this Court stands answered in favour of the plaintiff/respondent and against the appellant/defendant. 22. Coming to the second substantial question of law, it is pointed out by Mr. Kalita that in view of the amendments carried out to Section 23 of the Hindu Succession Act, the said question of law does not survive for consideration by this Court. 23. In that result, I find no merit in this appeal, and accordingly, the same is dismissed. However, having regard to the facts and circumstances of the case, there would be no order to cost. Prepare the decree accordingly. 24. Registry will send back the record. ______________