JUDGMENT
A.K. Parichha, J.
1. This is an appeal by one of the Defendants against the Judgment and decree passed by the Learned Subordinate Judge, Aska in Title Suit No. 41 of 1978. The Respondent No. 1 as Plaintiff filed the above noted suit for partition of the suit schedule lands and house and for allotment of 1/3rd share in the suit lands and 1/4th share in the suit house.
2. The Plaintiff’s case in brief was that one Daso, the father of Narasingha Swain, the deceased-husband of the Plaintiff died leaving the suit house and Ac. 0.25 cents of land, but to meet the obsequies expenses of his parents and marriage of sister, Narasingha sold those 25 cents of land. Subsequently Narasingha went to North India, worked there for some years, earned adequate amount of money and purchased the suit land which became his self acquired property. Narasingha died in the year 1974 leaving his widow, the Plaintiff, his son Defendant No. 1 and daughter-Defendant No. 2. The mother of the Plaintiff who had four Bharana of land and was living with the Plaintiff also died five days after the death of Narasingha and the Plaintiff performed the obsequies ceremony of late husband Narasingha and her sister performed the obsequies ceremony of their mother. When the matter stood thus, Defendant No. 1 executed a registered sale deed for the entire agricultural land left by Narasingha in favour of his father-in-law Defendant No. 3 in order to defeat the right of the Plaintiff and Defendant No. 2. The Plaintiff, therefore, filed the suit with the plea that the sale deed executed by Defendant No. 1 is not binding on her and she is entitled to 1/3rd share in the agricultural land and 1/4th share in the suit house. Defendant No. 2 did not contest the suit. Defendant Nos. 1 and 3 filed joint written statement claiming that the suit lands are the ancestral properties of the family as the same was acquired by Narasingha with the sale proceeds of the land left by his father Daso. It was also averred that to meet the expenses of obsequies of Narasingha and the mother of the Plaintiff, Defendant No. 1 had to incure a loan of Rs. 4,000/- and in order to repay the said loan with interest and also to meet some necessary expenses of the family he had to sell the suit lands to Defendant No 3. Defendant Nos. 1 and 3 accordingly denied the right of Plaintiff and Defendant No. 2 to any share in the suit agricultural land. They also denied any right of Defendant No. 2 over the suit house although they did not challenge the share of the Plaintiff over the same. On the pleadings of the parties, Learned Trial Court framed the following issues:
(i) Whether the suit, schedule lands are the self acquired properties of Narasingha Swain?
(ii) Whether the alienation in favour of Defendant No. 3 is genuine and for legal necessity?
(iii) Whether the Plaintiff is entitled to one-third share in the suit schedule properties as claimed?
(iv) To what relief?
3. The Plaintiff examined four witnesses including herself and produced certified copy of the S.R. extracts in T.S. No. 31 of 1976 which was marked as Ext. 1. The Defendants examined three witnesses including themselves and produced the registered sale deed dated 5.6.1934, the registered notice sent by the advocate dated 30.5.1978 and the office copy of the notice sent by Shri D. Panda, which were marked as Ext. A, B & C respectively. After assessing these evidences Learned Subordinate Judge came to hold that the suit schedule lands are the self acquired property of late Narasingha Swain, that the alienation of the suit lands in favour of Defendant No. 3 by Defendant tNo.1 was not for a legal necessity of the family and that the Plaintiff is entitled to 1/3rd share in the suit schedule land. He accordingly, decreed that the Plaintiff is entitled to 1/4th share in the suit house and 1/3rd share in the agricultural lands. Aggrieved with such Judgment and decree the Defendant No. 3 has preferred this appeal.
4. Mr. A.P. Bose, learned Counsel appearing for the Appellant alleges that the evidence and circumstances were not properly appreciated by the Learned Trial Court. According to him, there are sufficient materials on record to show that Narasingha acquired the suit lands from the joint family nucleus and that Defendant No. 1 had also made substantial contribution to such joint family nucleus. He further contends that the family had scanty income and it was essential to obtain loan for the treatment and obsequies expenses of Narasingha as well as the mother of the Plaintiff and thus there was good reason to infer that Defendant No. 1 sold the suit lands to Defendant No. 3 fer legal necessity of the family. According to Mr. Bose, the conclusion of the Trial Court that Defendant No. 1 was a small child and had no income of his own to contribute the joint family nucleus and there was no need for incurring loan for performing the obsequies of Narasingha and the mother of the Plaintiff are against the evidence on record. He submits that it is a fit case where the Judgment of the Trial Court should be set aside or the matter should be remanded to the Trial Court for reconsideration.
5. No one appears or offers any argument for the Respondents.
6. The relationship between the parties is not disputed. It is also not disputed that the suit schedule house is an ancestral property and the Plaintiff has 1/4th share in it. The main dispute is whether the suit agricultural lands are the ancestral property of the family or self acquired property of late Narasingha. In this regard, there is also no controversy that the 34 cents of the suit lands was purchased in the year 1955 and 21 cents were purchased in the year 1969 and 1971 in the name of Narasingha. Defendant Nos. 1 and 3 claimed that although these lands were purchased in the name of Narasingha, it was actually purchased from joint family nucleus and so it was the property of joint family. Law is settled that once a property is acquired in the name of an individual, presumption would be that the property is the self acquired property of that person unless it is proved that the said property was purchased for the joint family from the family fund. So, in the instant case the burden was on Defendant Nos. 1 and 3 to show that the lands purchased in the name of Narasingha were not the individual properties of Narasingha but were the properties of the family. To discharge this onus Defendant Nos. 1 and 3 relied on their own evidence as well as the statements of P.W. 2. D.W. 1 claimed that he was working as field servant and labourer and was earning money for the family and some of his earning was utilized for acquiring the suit land. In this regard, reliance is placed on the statement of P.W. 2 who said that Defendant No. 1 was working as field servant for 14 to 15 years. The evidence of D.W. 1 and other witnesses show that at the time of death of Narasingha Defendant No. 1 was 16 years old. Similarly, in the plaint as wellas documents Defendant No. 1 has been described as a person aged about 21 to 22 years. Narasingha died in or around 1974 and the suit was filed in 1978. The suit lands were purchased in 1955 and then in 1969 and 1971. Defendant No. 1 was not born by 1955 and in 1969-1971 he was 10 to 11 years old. So one cannot accept the plea that the Defendant No. 1 at the age of 10 to 11 years was working and earning enough money to contribute to the family nucleus for acquisition of family property. On the other hand the P.Ws. have made it clear and D.Ws. have also admitted that Narasingha was working in North India for some years and was making substantial income. So Narasingha’s acquiring the suit land from his own income is more probable.
7. It is the claim of Defendant Nos. 1 and 3 that Narasingha sold the lands left by his father Daso and with that sale proceeds he acquired Ac.0.34 cents of land in 1955. But the P.Ws. have clarified that the parents of Narasingha died and sister of Narasingha was married in or around 1955 and Narasingha sold Ac. 0.25 cents of land left by Daso to meet the marriage expenses of his sister as well as the obsequies expenses of his parents. Defendant No. 1 in his evidence also admitted that Narasingha’s sister-Parvati was married soon after the death of his grand-father Daso. So it is clear that 25 cents of land left by Daso was sold in or around the time when the parents of Narasingha died and sister of Narasingha was married. The family had only 25 cents of land and Narasingha was working as labourer. So, it was natural for Narasingha to sell the land for marriage of the sister or for meeting the obsequies expenses of parents of Narasingha. Thus the plea of the Plaintiff and the evidence was more probable and the Learned Trial Court was not unreasonable in concluding that Narasingha sold 25 cents of land left by Daso not for acquiring the 34 decimals of suit land in 1955, but to meet the family necessity.
8. It is the specific case of Defendant Nos. 1 and 3 that when Narasingha and the mother of the Plaintiff died within a course of few days substantial amount of money was necessary for meeting the obsequies expenses of those persons and for that reason Defendant No. 1, who was the Karta of the family after the death of Narasingha, had to incur a loan of Rs 4,000/- and for repayment of that loan and the interest which had accrued thereon he had to sell the suit land to Defendant No. 3 for Rs. 7,000/-. It is further claimed that out of the sale proceeds Rs. 6,000/- was spent for repayment of the loan and interest and Rs. 1,000/- was spent for the family needs. Whenever, any member of the joint family including a Karta sells any property of the family, onus is cast on him to show that the property was sold for family necessity. The claim of the Plaintiff is, that loan was never brought for the obsequies ceremonies of late Narasingha and her mother-Kshira as there was adequate income of the family to meet those expenses and that the sale deed was executed by Defendant No. 1 in favour of Defendant No. 3 to defeat the right of the Plaintiff and Defendant No. 2. In the face of such claim of the Plaintiff the burden was heavy on Defendant Nos. 1 and 3 to show that the suit land was sold for family necessity. Peculiarly the sale deed executed by Defendant No. 1 was not produced either by Defendant No. 1 or Defendant No. 3. Similarly no hand note or money receipt regarding the alleged loan or repayment was filed. No family members was produced in the Court to say that any loan was brought and utilized in the obsequies ceremonies of Narasingha and his mother-in-law. The sale deed and the pronote, money receipt etc. could have shown the purpose for which those lands were sold. Similarly, the concerned persons could have enlightened if actually loan was brought for obsequies ceremony. By not examining such witnesses and not producing any such document Defendant Nos. 1 and 3 failed to discharge their onus. On the contrary, the Plaintiff stated that there was reasonable income in the family and loan was not required for obsequies ceremony of Narasingha. She also stated that her sister performed the obsequies ceremony of Kshira and met all the expenses of the ceremony. The evidence of Plaintiff may not be clinching but burden was on Defendant Nos. 1 and 3 to show the legal necessity in the family. Since they could not discharge their burden, Learned Trial Court had every reason to draw adverse inference against them and to observe that the alleged sale of the suit land to Defendant No. 3 was not for legal necessity.
9. The foregoing discussions would show that the finding of the Learned Trial Court is not contrary to the evidence on record or any settled principle of law. The impugned Judgment and decree therefore, does not call for any interference. The Judgment and decree of the Trial Court is accordingly confirmed and the appeal is dismissed on-contest with costs.