Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No. 51 of 1979 Against the Judgment and Decree dated 21.9.1978 passed by Subordinate Judge, Jahanabad, Gaya in Partition Suit No. 82 of 1976. =================================================== Jagdish Narayan Singh & Ors .... .... Defendant Nos. 1 to 7/Appellants Lilawati Devi & Ors Versus .... .... Plaintiffs/Respondents =================================================== Appearance : For the Appellants : Mr. V.R.P. Singh, Advocate. For the Respondents : Mr. Janardan Singh =================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO Date: 29-04-2013 CAV JUDGMENT 1. The defendants have filed this first appeal against the judgment and decree dated 21.9.1978 passed by Subordinate Judge, Jahanabad (Gaya) in Partition Suit No. 82 of 1976 decreeing the plaintiffs respondents’ suit for partition. 2. The plaintiffs respondents filed the aforesaid partition suit claiming 1/4th share in the properties mentioned in Schedule A and Scheduled B of the plaint. It may be mentioned here that out of the immovable properties the suit abated regarding other lands except the land and building on plot No. 557 under Khata No. 300 measuring 7.5 Patna High Court FA No.51 of 1979 dt.29-04-2013 2 decimal at Bihta District Patna. Therefore, the suit for partition relates to this property of Bihta measuring 7.5 decimal whereon building is constructed. The plaintiffs claimed 1/4th share alleging that Deodhar
Legal Reasoning
Singh had five sons namely Jainath Singh, defendant No.1, Jawahar Singh, husband of plaintiff No.1, Rama Singh, defendant No.3, Roopan Singh, defendant No.5 and Chandrika Singh, who died issueless. The plaintiff Nos.2 to 4 are the sons of Jawahar Singh and Leelawati. Defendant No.2 is son of Jainath, defendant No.1 and his wife Bipat Kuer, defendant No.7. Defendant No. 4 is the son of defendant No.3 and likewise the son of defendant No.5 is the defendant No.6. The defendant No.1 is the Karta of the joint family property. The husband of the plaintiff No.1 namely Jawahar Singh was employed at Patna City and likewise plaintiff No.2 and 3 was also employed at Patna City therefore, they mostly live at Patna. The defendant No.1, who is Karta mismanaged the family property therefore, partition was claimed, but he refused. 3. The defendant Nos.1 to 6 filed contesting written statement. Their main defence is that the plaintiff No.1 is not widow of late Jawahar Singh nor the plaintiff Nos. 2 to 4 are the children of Jawahar Singh. According to them Jawahar Singh has no concern with plaintiff No.1 who was concubine of Kripanath Awasthi. She had also illicit Patna High Court FA No.51 of 1979 dt.29-04-2013 3 relation with one Salim Miya. The defendants have got quarrel with said Salim Miya who set up the plaintiffs for filing the suit. The plaintiffs are stranger to the family as such there is no unity of title and possessions between the parties. There was partition between the defendants in the year 1964 between the four brothers. The acquired properties which are standing in the name of different defendants are their self acquired properties. Since Jawahar Singh had neither wife nor any issue he gifted his all properties by registered gift deed dated 19.4.1965 in favour of defendant Nos. 2 to 5. 4. A separate written statement was filed by defendant No.7 who was added as one of the defendants by order dated 18.4.1978. This defendant No.7 is the wife of defendant No.1. According to her the land and building standing at plot No. 557 under Khata No. 300 of Bihta is her self acquired properties. She had purchased the same from the money which she got from maternal grand-father and grand- mother. After purchase she came in possession thereof therefore, neither Jawahar Singh nor any other plaintiffs or defendants have got any concerned with the properties. 5. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues. (1) Is the suit as framed maintainable ? Patna High Court FA No.51 of 1979 dt.29-04-2013 4 (2) Have the plaintiffs got any cause of action for the suit ? (3) Is the suit property valued and the court fee paid sufficient ? (4) If plaintiff No.1 a legally married with of late Jawahar Singh and are plaintiff Nos. 2, 3 and 4 sons and daughter of late Jawahar Singh. (5) Is plot No. 557 under Khata No.330 area 2.5 khata and the house standing thereon situated at Bihta in the District of Patna joint family property of the plaintiffs and the defendants ? (6) Have the plaintiffs unity of title and possession over the suit properties ? (7) Are plaintiffs entitled to a decree sought for ? (8) To what other reliefs, if any, are the plaintiffs entitled ? 6. After trial the lower court came to the conclusion that the property standing in the name of defendant No.7 is the joint family property. The lower court also recorded the finding that the plaintiff No.1 is the widow of Jawahar Singh and other plaintiffs are sons and daughters of Jawahar Singh and accordingly decreed the plaintiffs respondents’ suit for partition. 7.
Legal Reasoning
The learned counsel Mr. V.R.P. Singh appearing on behalf of the appellants raised two grounds and challenged the impugned judgment and decree. According to the first ground the lower court Patna High Court FA No.51 of 1979 dt.29-04-2013 5 has wrongly recorded the finding that the properties which is acquired in the name of the defendant No.7 by defendant No.7 is the joint family properties applying the principles of presumption of jointness, although the presumption is not available if the properties is acquired in the name of a female member. According to the learned counsel defendant No.7 is not a coparcener therefore, the property standing in her name cannot be presumed to have been acquired by the Karta or the joint family but the trial court presumed the same in favour of the plaintiffs. The learned counsel further submitted that no pleading is there in the plaint specifying as to whether the property was acquired by the Karta in the name of defendant No.7 or it was acquired by the coparceners in the name of defendant No.7. The second point raised by the appellants is that the plaintiff No.2 as well as plaintiff No.1 both has admitted that plaintiff No.1 was divorced and thereafter she was married in 1943 with Jawahar Singh. According to the learned counsel for the appellants there is no pleading to the effect that whether there was custom of re-marriage after divorce therefore, the re-marriage cannot be accepted without therebeing any pleading of custom in view of Article 431 and 441 of the Hindu Law by Mulla. The learned counsel relied upon a decision of the Apex Court in the case of Yamanaji H. Jadhav vs. Nirmala AIR 2002 SC 971. Patna High Court FA No.51 of 1979 dt.29-04-2013 6 Without considering this fact the learned trial court recorded the finding that the plaintiff No.1 is the wedded wife of Jawahar Singh. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 8. On the other hand, the learned counsel appearing on behalf of the respondents submitted that after considering the evidences and materials available on record the trial court came to the conclusion that the plaintiff No.1 is the wife of Jawahar Singh. The affidavit of the year 1949 was filed to show that plaintiff No.1 is the wife of Jawahar Singh. In the year 1949 there was no dispute between the parties. The other evidences have also been considered by the trial court and moreover in this present suit no relief has been claimed for declaration of the alleged marriage as void as there was no custom. In the defence the defendants have only raised the plea that she is not married with Jawahar, now therefore, on the ground that there was no pleadings of custom, the marriage cannot be disbelieved. 9. The learned counsel further submitted that the property, no doubt, stands in the name of defendant No.7 but in fact it is the joint family properties and still the joint rent receipts are being granted. The learned court below after considering the evidences recorded the finding that it is joint family properties, therefore, the first appeal is Patna High Court FA No.51 of 1979 dt.29-04-2013 7 liable to be dismissed with costs. 10. In view of the above contentions of the parties, the points arise for consideration in this first appeal are as follows : (i) whether the suit property i.e. the house and building standing on plot No. 557 in Khata No. 30 measuring 7.5 decimal at Bihta is self acquired property of defendant No.7 or is joint family property ? (ii) Whether the plaintiff No.1 is the wife of Jawahar Singh and other plaintiffs are their sons and daughters ? 11. Point No. 1. The case of the plaintiff is that all the suit properties are joint family properties. The purchased properties have been purchased out of the joint income. On the contrary, the defendant No.7 filed a contesting written statement separately alleging that this property is her self acquired property. In support of their respective cases the parties have adduced evidences. It may be mentioned here that there is no specific pleadings in the plaint as to who has acquired the Bihta land and house i.e. whether it was acquired by the coparcener in the name of the defendant No.7 or it was acquired by the defendant No.1 in the name of his wife defendant No.7. On the contrary, the defendant No.7 in her written statement stated that required money was provided by her maternal grand-father and grand- Patna High Court FA No.51 of 1979 dt.29-04-2013 8 mother and out of that money she acquired the property in her name. It is admitted fact that this property is acquired in the name of defendant No.7. The witnesses examined on behalf of the plaintiffs on this point are, PW 1 who has stated at paragraph 5 that the land at Bihta has been purchased. His father was working at Patna. The Bihta land was purchased out of his father’s income and the joint family fund. Likewise PW-4 the plaintiff No.1 has stated at paragraph 8 that for purchasing the Bihta land she had given 2500/- to her husband which was given by her husband to his brothers. No doubt, the other witnesses have stated that the property was purchased out of joint family fund but those evidences are not reliable. PW 1 is the son of plaintiff No.1. PW 4 is the plaintiff No.1 herself. According to them the property was purchased by Jawahar Singh out of his own income along with the income of the joint family fund. Whereas according to the PW 4 she gave Rs.2500/-. 12. It may be mentioned here that there is no such pleadings in the plaint. In general term it is pleaded that the properties are the joint family properties. It is settled principles of law that if the evidence is not founded by the pleading the same cannot be looked into vide (2008) 17 SCC 491 Bachhaj Nahar vs. Nilima Mandal and another. On the contrary, the brother of Jawahar Singh who are Patna High Court FA No.51 of 1979 dt.29-04-2013 9 defendant Nos. 3 and 5 have been examined as DW 8 and DW 1. They are the defendants in this case and they in their evidence clearly admitted the fact that the disputed land is the self acquired property of defendant No.7 out of her own fund. This admission is against their interest. From perusal of the impugned judgment it appears that the trial court at paragraph 14 made a guess work to the effect that probably the defendant No.1 and 7 gave out to the defendant Nos. 3 and 5 that their shares in the property at Bihta would not be lost if they made out a common case with defendant Nos. 1 and 7 to defeat the case of the plaintiff. In my opinion, the court cannot make guess work only with a view to disbelieve the case of party. 13. As stated repeatedly the property stands in the name of the defendant No.7. The registered sale deed is Ext. D. From perusal of the impugned judgment it appears that the court below observed that the property was acquired at the time when the family was joint so the defendant No.7 is required to prove that she had nucleus to purchase the property. This approach of the court below is wrong. The lower court applied the presumption, available when the property is standing in the name of a coparcener. The court below failed to notice that the property is standing in the name of a female member. There is no pleading in the plaint as to who had acquired the property. PW 1 Patna High Court FA No.51 of 1979 dt.29-04-2013 10 stated differently in his evidence then PW 4 his mother. The court below made the guess work and disbelieved the evidence of DW 3 and DW 5. No doubt, the burden of proving that any particular property is joint family property is in the first instance upon the person who claims it as joint property. But if the possession of a nucleus of the joint family is either admitted or proved, any acquisition made by the member of the joint family is presumed to be joint family property vide AIR 1969 SC 1076 Mudigowda Gowdappa Sankh and others vs. Ramchandra Revgowda (dead) by his LRs and another. But this presumption is not available in the present case because admittedly the property is in the name of defendant No.7. In the case of Smt. Radhamma vs. H.N. Muddukrishna AIR 2006 Karnataka 68 a division bench of Hon’ble Karnataka High Court at paragraph 29 and 30 has held as follows : “29. With this nature of evidence, we have to see whether the burden of proof was shifted from plaintiffs to defendants to establish that the property as purchased out of their personal income. As a matter of fact, the initial burden is on the plaintiffs to establish that adequate nucleus was available for acquisition of such property. This again depends on the nature and the extent of the nucleus. When the details regarding the availability of joint family funds Patna High Court FA No.51 of 1979 dt.29-04-2013 11 and the nucleus are absent, question of shifting the burden to the defendants does not arise. However, the defendants were able to establish that the property was purchased out of the income of her husband and other personal property of Smt. Saroja . 30. In the present case, the property does not stand in the name of the male member of the joint family. It stands in the name of a female member. There is no presumption that it belongs to joint family when it stands in the name of female member. Therefore, the material placed before the Court would only establish that “H’ schedule property is not purchased out of joint family funds.” 14. The defendant in the present case to prove that the properties are he self acquired property has examined the witnesses DW 1, DW 8 and herself and her husband who all have stated that the property was purchased by defendant No.7 and house was constructed thereon by her with the help of the fund given by the maternal grand mother and grand father of the defendant No.7. However, the learned court below disbelieved the case on this ground that there is no evidence adduced on behalf of the defendants to show what was the extent of property owned by her maternal grand father and maternal grand mother and which was sold to whom and what was the amount provided to the defendant No.7. In my opinion, this approach of the Patna High Court FA No.51 of 1979 dt.29-04-2013 12 court below is not acceptable. In view of the decision referred to above since the title deed is in the name of defendant No.7, the onus was on the plaintiff to prove categorically that this property was acquired out of the joint family fund. It may be mentioned here that there is no pleading about the joint family fund or that joint family nucleus. It further appears that the trial court instead of examining as to whether the plaintiff has been able to prove that the property is the joint family property placed a wrong onus on the defendant No.7 to prove that she acquired the property out of her own personal fund and nucleus. It will not be out of place to mention here that the defendant No.1 was also employed. Defendant No.7 and her husband in their evidences stated that the maternal grand mother and grand father of defendant No.7 had no other heirs except this defendant No.7 therefore, they gave their properties to this defendant No.7. Out of the said fund she purchased the land and also constructed the house. Trial court on wrong assumption and wrong application of principle of presumption held that the defendant No.7 failed to prove that she acquired the suit land out of his own fund. 15. In view of my above discussion, I find that the property purchased which is under dispute i.e. plot No. 557 i.e. Bihta land has been purchased by defendant No.7 as such it is her self acquired Patna High Court FA No.51 of 1979 dt.29-04-2013 13 property. The finding of the court below on this point is therefore, reversed. 16. Point No.2. According to the plaintiff No.1 she is the wife of Jawahar Singh and she was married in 1943. On the contrary, the defendants have stated that she is not the wife of Jawahar Singh rather she is a lady of bad character. In support of their respective cases the parties have adduced their respective evidence. The plaintiffs have filed the affidavit Ext. 2 dated 7.7.1949, Ext. 3 admission card of Bihar School Examination Board and the post card Ext. 1 series which clearly proves that the plaintiff No.1 was living with Jawahar Singh as husband and wife since long. In the affidavit Jawahar Singh has admitted that a son was born to him. The witnesses examined i.e. PW 1 to 3 all have deposed regarding the marriage of plaintiff No.1 with Jawahar Singh. They have also disclosed special means of knowledge regarding the relationship between Jawahar Singh and plaintiff No.1. According to law the presumption of validity of marriage is in favour of the plaintiff. Here the plaintiff has produced the oral evidences which are admissible under Section 50 of the Indian Evidences Act. The documentary evidence also proves that they were living as husband and wife for more than 30 years. The only point raised by the learned counsel for the appellants is that the plaintiff No.1 and Patna High Court FA No.51 of 1979 dt.29-04-2013 14 plaintiff No.2 who have been examined as PW 4 and PW 1 have stated in their evidence that after divorce with the earlier husband she was married with Jawahar Singh but no custom has been pleaded therefore, the marriage with the present Jawahar Singh is void marriage. So far this submission is concerned, it may be mentioned here that the defendants have only raised the defence in the written statement to the effect that the plaintiff No.1 is not the wife of Jawahar Singh. It is not their defence that since no custom was pleaded and she was married after divorce, the marriage is void marriage. In other words, this issue raised by the appellants before this Court was not an issue before the court below nor any evidence was adduced. So far the decision of the Apex Court relied upon by the appellant i.e. AIR 2002 SC 971 is concerned, it may be stated here that in that case the marriage was held in the year 1978 and the wife filed the suit for declaring deed of divorce as fraudulent. The trial court dismissed the suit. The High Court allowed the suit. The Hon’ble Supreme Court held that there must be pleading of custom of divorce by deed. Therefore, in that case there was direct question about the legality or otherwise of marriage or re-marriage after divorce. Here this issue was not the direct issue. According to the plaintiffs she was married in 1943. According to the defendants she is Patna High Court FA No.51 of 1979 dt.29-04-2013 15 not the wife of Jawahar Singh. This was the only issue on the fact of the evidences discussed. I find that the plaintiff No.1 has been able to prove that she is the married wife of Jawahar Singh. It is admitted fact that the other plaintiffs are the sons and daughters of plaintiff No.1. Therefore, the findings of the trial court on this point are confirmed. 17. Although the point No.2 has been decided in favour of the plaintiffs respondents they are not entitled to a share in the property which has been held to be the self acquired property of defendant No.7. Therefore, this first appeal is allowed. The impugned judgment and decree are set aside and the plaintiffs’ suit for partition of the land and building in plot No. 557 under Khata No.300 area 7.5 decimal at Bihta District Patna is dismissed. No orders as to costs. Patna High Court, Patna Date : 29.04.2013 S.S. (Mungeshwar Sahoo, J.)