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2015 DIGILAW 178 (ORI)

Anadi Charan Dalai v. Ashok Kumar Patnaik

2015-03-16

D.DASH

body2015
JUDGMENT The plaintiff of Title Suit No. 7/06/210 of 1998 being aggrieved by the judgment and decree passed therein by the learned Adhoc Additional District Judge (FTC), Jagatsinghpur decreeing the suit preliminarily in part, has filed this appeal. The suit filed by the appellant has been decreed preliminarily in part declaring 1/4th share of the plaintiff defendant no. 1,2 and 4 each over the schedule-A property and 1/3rd share of plaintiff, defendant no. 1 & 2 over schedule-B property. The property described in item no. 1 and 2 of the schedule –C has been ordered to be devided in equal half between defendant no. 1 and 2. 2. For the sake of convenience, to avoid confusion and for clarity, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3. Plaintiff-defendant No. 1,2 and 3 are the brothers being sons of Nari Dalei. Defendant No. 4 is their sister, the only daughter of Nari. It may be stated here that Nari was originally the defendant no. 3 and he has died during pendency of the suit. The wife of the defendant no. 2 has been arraigned as defendant no. 5. It is the case of plaintiff that the parties are members of Hindu joint-family. The plaintiff is serving as a Junior Engineer under the State Government in the department of R & B, whereas the defendant no.2 is serving as Senior Accountant in the office of the Accountant General, Odisha, Bhubaneswar. It is stated that the plaintiff used to contribute some money to the family for maintenance of father and meeting other expenses every month. Property described in schedule-A of the plaint is said to be the ancestral property of the parties in their joint possession. It is stated that the plaintiff and defendant no. 1, 2 and 4 each are having 1/4th share over the same. Following the father’s suite, the defendant No. 1 was and has been carrying on fish business during his life time. The eldest son of defendant no. 1 is said to be serving in the office of the Accountant General as a Clerk and was staying with defendant no. 2. It is asserted that defendant no. 2 used to take all his salary and in lieu thereof was providing food till his marriage in 1997. The eldest son of defendant no. 1 is said to be serving in the office of the Accountant General as a Clerk and was staying with defendant no. 2. It is asserted that defendant no. 2 used to take all his salary and in lieu thereof was providing food till his marriage in 1997. Out of income of the plaintiff-defendant No. 1,2 and3, the properties described in schedule –B & C are said to have been purchased from different persons at different times. It is vehemently asserted that the said properties are joint-family properties in joint possession of the parties. In further clarifying the matter, it is pleaded that the schedule-B properties was purchased in the name of the plaintiff-defendant No. 1 and 2, whereas schedule-C property was purchased in the name of defendant no. 1 and 2 and at that time, the plaintiff was residing at his place of service. The plaintiff thus claims that he himself, defendant no. 1, 2 and 3 each have 1/4th share over the schedule-B and C properties. The properties described in schedule-D are situated at Bhubaneswar in different places. It is averred that plaintiff defendant no. 1 and 2 proposed to purchase some properties in the capital of the State, in suburb areas. Accordingly, the Plaintiff-defendant No. 1 and 2 and eldest son of defendant No. 1 contributed the consideration money for purchase of said properties and the money was entrusted to defendant no. 2. However, he purchased properties under lot-I, II and III in his name and lot-IV for in the name of his wife in-stead of purchasing the same in the name of Plaintiff-defendant No. 1 and 2. It is sated that out of the income of plaintiff, defendant no. 1 and 2 as well as the eldest son of defendant no. 1, the properties described in schedule-D has been so purchased and over the said properties, the plaintiff has his 1/3rd share and defendant no. 1 and 2 have 1/3rd share each. Defendant no. 5, the wife of defendant no. 2 is said to be a name-lender having absolutely no right, title and interest over the properties shown to have been purchased in her name. Similarly, defendant no. 1 and 2 are said to be the name-lenders in respect of the schedule-C properties, though sale-deed shows the purchase to have been in their names. 5, the wife of defendant no. 2 is said to be a name-lender having absolutely no right, title and interest over the properties shown to have been purchased in her name. Similarly, defendant no. 1 and 2 are said to be the name-lenders in respect of the schedule-C properties, though sale-deed shows the purchase to have been in their names. The plaintiff having asked the defendants for partition of the properties claiming allotment of share over the properties to aforesaid to him, they turned deaf ear to it. So, the suit has come to be filed. 4. The defendant no. 1 to 4 filed a joint written statement supporting the case of the plaintiff. It is pleaded by them that the schedule-B and C properties have been purchased out of income from joint-family nucleus and with its aid. Schedule-D property has been purchased out of the joint income of plaintiff-defendant No. 1 and 2; so, the plaintiff-defendant No. 1, 2 and 3 have equal share over the suit properties. 5. Defendant no. 2 and 5 filed a joint written statement. While traversing the plaint averments, it is stated that defendant no. 1 being the eldest son of deceased-defendant no. 3 was in-charge of cultivation of ancestral properties of the parties along with the father. The extent of ancestral properties is said to be Ac. 1 and the odd. The income from out of joint-family properties is said to be wholly insufficient for maintenance of the family. Therefore, it is stated, they used to pay some money either to defendant no. 1 and 2 or to father to meet their need and that of the joint family and they assert to have borne the educational expenses of the plaintiff. The plaintiff was living with them for some years during his educational career and after completion of his professional course; he joined as Junior Engineer at Bolangir. Till then, this defendant No.2 was bearing all his expenses. Similarly, the son of defendant no. 1 was also living with them during his college days with his entire expenses being met y the defendant no. 2, being engaged as Clerk in the office of the Accountant General and the arrangement continued since 12.12.1988 and after sometime he resided in separate quarter. Similarly, the son of defendant no. 1 was also living with them during his college days with his entire expenses being met y the defendant no. 2, being engaged as Clerk in the office of the Accountant General and the arrangement continued since 12.12.1988 and after sometime he resided in separate quarter. It is strenuously asserted that the plaintiff has made no contribution out of his income to these defendants at any point of time nor there has been any payment by him for the benefit of the joint-family. Likewise, the contribution of the son defendant no. 1 as averred is also denied. It is stated that defendant no.1 instigated the plaintiff and persuaded him to file the suit to grab their properties. Defendant no. 2 at times was taking rice from the village, but defendant no.1 is attributed to have been appropriating the entire yield of the joint-family properties. When the defendant no. 2 was not even shown that small favour of provision for rice, the dispute arose since that time onwards. It is said that defendant no. 1 was entrusted to cultivate some self acquired landed properties of defendant no. 2 and he was to submit accounts. However, when defendant no. 2 filed a case for partition before the Consolidation Commissioner, it is said that the defendant no. 1 could set up the plaintiff to lay a false claim over their self acquired properties in order to harass them and ultimately succumb to the undue pressure. 6. On such rival pleadings, the trial Court framed six issues. The two issues of utmost importance are the issue no. 3 and 5 which are stated hereunder:- (1) Whether the plaintiff has got right, title, interest and possession over the suit schedule-D property? and (2) Whether the suit schedule properties are liable to be partitioned, declaring the entitlement of plaintiff’s 1/3rd share in schedule –A, 1/3rd share in schedule-B an 1/3rd share in schedule-D properties and consequently the allotment of share to other respective parties? The plaintiff in the trial has examined four witnesses including himself as P.W.4, whereas defendant no. 1 examined himself and his son has come to the witness box as D.W. 2 whereas the defendant no. 2 has examined himself as D.W.3. From the side of the plaintiff, the record of right of the suit schedule properties have been proved and marked as Ext. 1 to 4. 1 examined himself and his son has come to the witness box as D.W. 2 whereas the defendant no. 2 has examined himself as D.W.3. From the side of the plaintiff, the record of right of the suit schedule properties have been proved and marked as Ext. 1 to 4. The registered sale-deed in favour of the defendant no. 1 have been marked as Ext. 5 and 7 and those in favour of the defendant no. 2 have been marked as Ext. 2,4, 9 and 10 respectively. The registered sale-deed in favour of defendant no. 5 has been marked as Ext. -11. Original registered sale-deeds in favour of defendant no. 2 and 5 have been admitted in evidence as Ext. A,B, C & D as also two records of right such as Ext. E & F standing in their name. 7. The trial Court as it appears very rightly has taken up those two vital issues numbered as 3 and 5 together for decision as those are inter-related and has answered those issues as the same has the final say on the fate of the suit and for the reliefs claimed. Taking up those two issues, the trial Court has gone to examine the evidence on record, in the touchstone of the rival pleadings. Ultimately, in the backdrop of the settled position of law with regard to treatment of the properties standing separately in the name of individual member of the family as the joint family properties having lost their characteristic as the self-acquired or separate property, if any, it has been held that the plaintiff and defendant no. 1 have failed to discharge the burden of proof that those properties described in the name to schedule-B, C and D have been purchased from out of the income of the joint-family properties by way of utilization of the surplus income. It has been categorically held that the schedule-B property has been purchased by way of contributed from the side of the plaintiff-defendant no. 1 and defendant no. 2 and so far as the purchase of schedule-D properties are concerned; there has been no contribution in any manner by the plaintiff and defendant no. 1. It is also held that the plaintiff has failed to establish any contribution in case of purchase of schedule-C lands. With these answers to those issues, the suit has been decided as aforesaid. 2 and so far as the purchase of schedule-D properties are concerned; there has been no contribution in any manner by the plaintiff and defendant no. 1. It is also held that the plaintiff has failed to establish any contribution in case of purchase of schedule-C lands. With these answers to those issues, the suit has been decided as aforesaid. Answers to the other issues have followed the said path. 8. The appellant here in this appeal assails the finding of the trial Court on those issue no. 3 and 5 claiming that the Court below ought to have granted the reliefs prayed for in the plaint by way of allotment of share to him as claimed over all those scheduled properties. Learned counsel for the appellant argues with vehemence that the plaintiff has successfully established his case by leading oral and documentary evidence further deriving support from the evidence adduced by defendant no. 1 and his son that all these properties described in the plaint schedule are the joint-family properties. According to him, overwhelming evidence remains on the score that all those properties described in the suit though purchased in the name of the some of the members of the family and in the name of defendant no.2 as also in the name of his wife are all but these are with the aid of the surplus income of the joint-family properties; as also with the contribution of all. Therefore, he urges that the trial Court’s finding that the plaintiff has failed to discharge the burden of proof in proving those properties in schedule-B, C & D to be the joint-family properties is against the weight of evidence and wholly erroneous and thus, can’t stand to scrutiny. In order to buttress the submission, painstakingly, he has placed the evidence of all the witness examined by the parties which will be referred to as may be necessary in course of discussion to follow. Thus, he contends that the finding of the trial Court on issue No. 3 and 5 are required to be rendered wholly in consonance with the prayer made in the suit without slightest deviation. Learned counsel for the appellant no. 8 and 9 (defendant no. 2 and 5) submits in favour of the finding rendered by the trial Court contending that the important issues no. Learned counsel for the appellant no. 8 and 9 (defendant no. 2 and 5) submits in favour of the finding rendered by the trial Court contending that the important issues no. 3 and 5 have been rightly answered upon proper evaluation of evidence in the backdrop of the pleadings of the parties and on due application of the settled principle of law covering the subject. He has also placed the depositions of witnesses one by one in support of his submission that there has been complete failure on the part of the plaintiff to establish the fact that all the suit schedule properties are the joint family properties. According to him, the evidence let in by the plaintiff in a generalized manner that all the purchases have been made from out of surplus income of the joint family properties in not sufficient to discharge the burden of proof resting upon the plaintiff so as to shift the onus to other members of the family including these two defendants that they have purchased the property form out of their own funds. Learned counsel appearing on behalf of the rest of the respondents reiterates the submission of the learned counsel for the appellant. 9. On the above rival contentions, this Court is called upon to examine the defensibility of the finding rendered by the trial Court on issue no. 3 and 5 in order to judge the allotment of share to the parties over the properties described under different schedules of the plaint as sustainable or not. 10. Before going to address above, for having the right approach and better appreciation, it is necessary to take note of the settled position of law. There is no presumption that the family, because it is joint, possesses joint property and when in a suit for partition, a party claims that any particular item(s) of property held by an individual member is the joint family property, the burden of proof that it is so, rests upon the party asserting the same. Existence of Mitakhara Hindu joint family does not raise a presumption that it owned the joint family property. Existence of Mitakhara Hindu joint family does not raise a presumption that it owned the joint family property. But when such nucleus is either proved or admitted, when from its nature and relative value, it could be inferred that such property could have been acquired, the burden shifts to the parties alleging self acquisition and he must establish affirmatively that such property was not acquired with the aid of the joint family. In order to raise the presumption that a property acquired by a member of a joint Hindu Family is a joint property not only should the nucleus be established as sufficient for the acquisition of the property but it should also be established that it was available to the acquirer. There may be presumption that there is Hindu Joint Family, but there can be no presumption that the joint family possesses joint family properties. Thus, there is no presumption of a property being joint family property only because of existence of a joint Hindu family. The one who asserts has to prove that the property is joint family property. Further the persons so asserting has to prove that there was a nucleus with which the joint family could have acquired the property, there would be presumption that the property is joint when only the onus shifts on the persons who claims to have acquired the property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. A regards purchase of the property in the name of a female member of a joint Hindu family being claimed that the property was acquired from joint family funds, the burden lies on the party who asserts to establish the nucleus and availability of such joint family funds for acquisition of property and the burden does not shift. No presumption arises that the property belongs to the joint family as the property stands in the name of the female member of the family. 11. With the above rival submissions, keeping in mind the settled position of law as aforementioned, this Court is now called upon to examine the defensibility of the findings rendered by the trial Court on Issue No. 3 & 5 so as to judge the allotment of share to the parties over the properties described under different shares of the plaint as justified or not. For the purpose, the evidence is required to be gone though. PW.1 is Sarat Dalei, he claims to be employed as labourer by the Mayadhar Dalei, his father and other villagers. In paragraph 6, he has expressed his ignorance regarding all the lands of the parties, their boundaries and relating to growing of crops etc. He is not in a position to say as to when the land of village Chakradharpur has been purchased; what was the status of the defendant No. 1 as Contractor has also not been stated by him. He further states that prior to 10 years of his deposing in Court, the defendant no. 1 was not doing any work as Contractor, but was doing fish business that also he is not able to say since when. He has stated nothing about the arrangement of giving money by defendant no. 1, Mayadhar and his son Ashok to Jayaram for purchased of any of the properties. So, evidence of this witness does in no way helps the plaintiff in support of his case that he had contributed the money for the purchase of such property under actual dispute. 12. Now coming to the evidence of P.W.2, Chandramani Nayak, it is seen that he has stated about the stay of Ashok and his sister with defendant no. 2 at Bhubaneswar during the period when they were pursuing their education. This is a normal circumstance that when a brother lives in a city with availability of better education facility, the children of the other brothers living in the rural areas used to stay with the uncle in the city for their education. So from that, no such interference can be raised with regard to the purchase of any of the properties so as to judge or ascertain its character. It even also so happens in the case of separated brothers. This fact even if accepted is of no such significance and does not throw much of light on the real controversy. The witness has further stated about supply of rice to defendant no. 2, which is again a normal feature. It is his evidence that the defendant no. 1 joined in service since 30 years. He had not gone to the house of defendant no. 2 and has not seen Ashok to have at any time given money to defendant no.2, but he had stated to have heard it. 2, which is again a normal feature. It is his evidence that the defendant no. 1 joined in service since 30 years. He had not gone to the house of defendant no. 2 and has not seen Ashok to have at any time given money to defendant no.2, but he had stated to have heard it. It is not stated as to from whom he heard so. Thus his evidence in this regard is of no value. He is also able to say that if any land was purchased in the name of defendant no. 1 and 2. In para 30, he states that the plaintiff has no house at Bhubaneswar. He has no idea as to whether defendant no. 1 and 2 had borne the expenditure for education of the plaintiff, when he was prosecuting his Engineering studies. He expresses ignorance about the classification of the Contractor license and since how many years defendant no. 1 possesses the said license. He is also not in a position to say that who invested the money for the purchase of land of Chakradharpur. He remains conspicuously silent regarding payment by plaintiff Mayadhar and his son Ashok to Jayaram for purchase of any of the suit property. This is all the evidence of witness and this also does not help the plaintiff for providing support to his case. The evidence of Batakrushna Sahoo, P.W.3 is almost in the same vain. He has not stated anything regarding payment of money by plaintiff, Anadi to Jayaram for purchase of land. He has only stated that Ashok was giving all his salary to Jayaram. This is also stated by him for the purpose of family expenditure. This part of evidence even if accepted cannot lead to any interference with regard to the purchase of property by Jayaram with the help of that money provided by Ashok when admittedly Ashok and his sister were residing with Jayaram under the same roof at Bhubaneswar. So for the purpose nephew giving his salary to uncle is not a circumstance to support that it was so given for being used for the purpose of purchased property by uncle alone or uncle with other or by aunt. Important part of his evidence comes in para-8, where he states to have not seen son of Mayadhar giving the money to defendant, Jayaram. Important part of his evidence comes in para-8, where he states to have not seen son of Mayadhar giving the money to defendant, Jayaram. He is also not able to say about the salary of son of Mayadhar. P.W. 4 is the plaintiff. His evidence is that out of his income and income of defendant no. 1, 2 and 3, schedule-B & C properties were purchased and out of his income and income of defendant no. 1, 2 and Ashok son of defendant no. 1, schedule-D property has been purchased. How far this evidence is believable now stands for consideration. As already stated, the evidence of other witnesses do not come to the rescue of the plaintiff. Anadi joined his service as admitted on 28.08.1989. So before that he was having no income and was a dependant upon his brother for prosecuting his studies. The properties purchased under Ext. 4,5, A and C are on 23.03.1984, 12.01.1983 and 18.09.1979. Those are thus much prior to the plaintiff joining in service. So, the evidence of plaintiff bites dust. Except the bald statement f this plaintiff, there remains no other documentary or oral evidence to provide him the support to discharge the burden of proof. Nothing is said as to when proposal was given, when amount was paid and how much was the contribution of plaintiff, Mayadhar and Ashok. The evidence on this score, thus appear to be vague and as such unacceptable. Without putting a stop here if we further revert to evidence of plaintiff at para 14 of his deposition, it is seen that he has stated that lands in mouza Pipal in lot-2 of schedule-C are the self acquired property of defendant no. 1 & 2. So the plaintiff admits this item(s) of properties to be self –acquired property of the defendant no. 1 and 2, when the sale-deed also stands in the name of defendant no. 1 & 2. Again in para-15, it is stated as under:- “I cannot say on which date, month and year, the sale-deeds was executed nor I can say that from (whom) the land was purchased. I have no knowledge in which Sub-Registrar’s Office; the sale-deed in respect of these lands was executed.” In such state of affair in the evidence of plaintiff, the case of the plaintiff as regards the nature of property appears to be unbelievable. I have no knowledge in which Sub-Registrar’s Office; the sale-deed in respect of these lands was executed.” In such state of affair in the evidence of plaintiff, the case of the plaintiff as regards the nature of property appears to be unbelievable. It is pleaded that for purchase of schedule-B & C property, the money was contributed by plaintiff , Mayadhar and Jayaram as also Nari. At this stage, when we go to para 24 of his deposition, it is seen that his father Nari had already become invalid since 1977-78. The properties were purchased after 1980 and all the sale-deeds are of that contemporary period. Next it is pleaded that Ashok son of the defendant no. 1 contributed money for purchase of the schedule-D property. In para 22 of his cross-examination, he states to have seen the payment of money by Ashok to defendant no. 2 for purchase of the land. Then again he states that money was paid by Ashok to defendant no. 2 for house hold expenses. So, the very case in that regard to a great extent gets demolished. Therefore, on proper scanning of the evidence on record, the plaintiff is found to have not discharged the burden of proof that the suit properties under all the schedules and items are the joint family properties. 14. The evidence of D.W. 1 and D.W. 2 have also been properly discussed by the trial Court. The evidence of D.W. 1 not only appears to be vague but also unbelievable that he had seen the payment of money to Jayaram by father Mayadhar and uncle Anadi since its without providing any justification and reason for that. No such specific evidence is there that in case of each of the purchase what was the contribution from whom. If it is considered and taken to be granted that he was giving his entire salary to Jayaram, that itself even would not be sufficient to conclude that whatever property was purchased by Jayaram would be treated as the joint property of Jayaram and Ashok in the absence of evidence showing other supportive circumstances in that regard. The evidence is not at all specific that there was contribution for the purpose of purchase of property. The evidence of D.W. 2, Mayadhar Dalei is also in the similar line. The conducts of the parties are not also shown in that direction. The evidence is not at all specific that there was contribution for the purpose of purchase of property. The evidence of D.W. 2, Mayadhar Dalei is also in the similar line. The conducts of the parties are not also shown in that direction. In view of all these, this Court finds no reason to disagree with the finding of the trial Court on these two issues. The property purchased by defendant no. 5, the wife of defendant no. 2 on the basis of existing evidence also can’t be treated otherwise as the burden of proof resting on the party so claiming stands un-discharged and the presumption that it is her property with such evidence without being shaken firmly stands. Thus, the trial Court’s findings that schedule A property to be divided equally amongst plaintiff, defendant no. 1, 2 and 4; schedule B property to be divided equally amongst plaintiff, defendant no. 1 and 2 and schedule –C property be divided amongst defendant no. 1 & 2 and schedule-D property as not liable to partition is found to have been based on just and proper appreciation of evidence and as such are hereby affirmed. The judgment and decree impugned in the appeal are thus confirmed. 15. In the result, the appeal stands dismissed and in the circumstances without costs. Appeal dismissed.