Ram Babu Singh v. Both

village-Marsaud, P.S.-Runnisaidpur, District-Sitamarhi. ---Defendants-Respondents-Respondents. ====================================================== Appearance : For the Appellant/s : Mr. Madhukar Pandey For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 2 9 22-03-2013 Heard the learned counsel for the parties.

The plaintiff is the appellant in this appeal against the judgment and decree of affirmance by the appellate court below upholding the dismissal of the suit for partition.

The learned counsel for the appellant has submitted that admittedly the plaintiff and the defendants are the sons of Ram Nihora Singh, and therefore, the presumption of jointness between them is strongest. It has been further submitted that the suit properties mentioned in the schedules are the joint family properties and even though the property in Schedule II situated at village Runnisaidpur, District-Sitamarhi has been acquired in the name of the defendant no.1 Ram Chandra Singh (now deceased) but the same had been acquired by the father of Ram Nihora Singh in the State of jointness from joint family fund. The learned counsel has put emphasis that there is no dispute that the joint family possessed the properties and as such it could have provided nucleus for the acquisition of the property in village-Runnisaidpur. It has been canvassed that once the nucleus is admitted or established in a joint family then the presumption would be that the property acquired by a member of joint family shall be joint family properties and heavy burden lies on the said member to establish that it is his self-acquisition. The learned counsel has Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 3 emphasized that in the present case defendant no.1 or for that matter the other defendants who obtained the property in question in Schedule II by way of gift from the defendant no. 1 has failed to establish that the defendant no.1 had acquired the said property out of his separate fund. It has also been submitted that the deeds of gift executed by defendant no.1 in favour of his daughters as well as defendant no.2 with regard to the properties in Schedule II are clearly illegal and void documents as no gift is permissible with regard to the joint family properties.

The plaintiff has filed the suit for partition of his 1/3rd shares in the suit property mentioned in Schedules I, II and III of plaint. It has been stated in the plaint that the property mentioned in Schedule I is the property which came to the share of the father Ram Nihora Singh in partition with his brother Yogendra Singh and the properties mentioned in Schedule II of the plaint had been purchased by Ram Nihora Singh out of joint family fund in the name of his elder son Ram Chandra Singh who is defendant no.1 alognwith Birendra Prasad Singh. It has been further stated that Ram Nihora Singh constructed a house over the purchased property and separated from Birendra Prasad Singh and the share of Ram Nihora Singh came towards north in the house. It has also been stated that the tenants are there in the said north portion. It Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 4 has also been the case of the plaintiff that the defendant no.1 Ram Chandra Singh has wrongly executed the gift deeds in favour of his daughters as well as in favour of his brother Awadh Kishore Singh who is defendant no.2 in the suit. The plaintiff claimed 1/3rd share in the property on the basis of aforesaid main facts.

The defendants contested the claim of the plaintiff and asserted that there had already been partition in between the three sons of Ram Nihora Singh i.e. plaintiff, defendant no.1 and defendant no.2 in the year 1971 and in that partition, the father Ram Nihora Singh took only 2.46 acres of land for maintenance. The details of the properties allotted to the shares of the plaintiff, defendant no.1 and defendant no.2 and father Ram Nihora Singh have been mentioned in the Schedule of the written statement. It has been further stated that after the death of the father Ram Nihora Singh in the year 1988 there had been further partition of the land allotted to the father. The defendants have claimed that the property in village-Runnisaidpur as mentioned in Schedule II of the plaint had been the self-acquired property of the defendant no.1 Ram Chandra Singh out of his separate income from business. It has been claimed that the defendant no.1 Ram Chandra Singh was the step-son of Ram Nihora Singh and due to ill-treatment by his step-mother and in-different attitude of his Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 5 father, he started his own business in partnership with a co-villager Birendra Prasad Singh and out of the income of the said business, the property in village-Runnisaidpur was acquired jointly by Ram Chandra Singh and Birendra Prasad Singh and after partition northern part of the house constructed on the acquired property came in the share of Ram Chandra Singh and it was his separate property.

Both the courts below after evaluation of evidence of the parties have come to the concurrent finding of fact that there had been partition between the plaintiff and the defendants of their joint family properties and there was no unity of title and jointness of possession subsisting between them. It has been further held that the property mentioned in Schedule II of the plaint of Village- Runnisaidpur is the self acquired property of the defendant no.1 Ram Chandra Singh. The suit was dismissed and, thereafter the appeal has also been dismissed by the impugned judgment and decree.

The main contention on behalf of the appellant is that in view of the admitted position that the joint family of the plaintiff and defendants possessed sufficient properties which could have provided nucleus for acquisition of the property mentioned in Schedule II of the plaint in Village-Runnisaidpur, Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 6 the presumption would be that the said property is also joint family property. It is well settled that a member of Hindu joint family property even in state of jointness can have separate earning and can acquire property out of the said earning. The existence of sufficient property in the joint family, at the time when a member of the family property acquires property out of his own income in his name, is not sufficient to make the said property partake the nature of the joint family property. The existence of nucleus by way of substantial property in the joint family is alone not sufficient to raise the presumption of jointness with regard to the property acquired by a member of a joint family rather the further requirement is to plead and establish that the joint family properties existing at that time were generating sufficient income out of which the property in question could have been acquired. The principle of law in this regard has been laid down by the Apex Court in the case of Srinivas Krishnarao Kango Vs Narayan Devji Kango & Ors AIR 1954 SC 379 as follows:-

…Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 7 nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may foundation of subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case...

Testing the submission on behalf of the appellant on the anvil of the aforesaid dictum, it appears that there is no pleading at all by the plaintiff that the existing joint family properties were generating sufficient income or savings for acquisition of the property mentioned in Schedule II of the plaint. There is only a bald statement that the said property had been acquired out of joint family fund by the father Ram Nihora Singh in the name of his elder son defendant no.1 Ram Chandra Singh along with a co-villager Birendra Prasad Singh. No evidence led on behalf of the plaintiff could be pointed out to demonstrate that there was income or saving from the joint family properties which could have formed the corpus for acquisition of the property in the Patna High Court SA No.250 of 2011 (9) dt.22-03-2013 8 name of defendant no.1. To the contrary the findings by both the courts below are on the basis of appreciation of evidence that the said property in Schedule II was the self acquisition of the defendant no.1 out of his own earning in business which he carried in partnership with Birendra Prasad Singh. In fact the submissions on behalf of the appellant center around reappreciation of evidence in order to upset the concurrent findings of fact by both the courts below but the same is not permissible in the second appellate jurisdiction.

In view of the aforesaid premised reasons, I do not find that there is any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)