Bhagwani Devi And Anr. vs Wadhuram And Ors. on 9 January, 2006

Chattisgarh High Court
Bhagwani Devi And Anr. vs Wadhuram And Ors. on 9 January, 2006
Equivalent citations: AIR 2006 Chh 49
Author: V K Shrivastava
Bench: V K Shrivastava


JUDGMENT

Vijay Kumar Shrivastava, J.

1. This appeal has been directed against the judgment and decree dated 20-11-1997 passed in Civil Suit No. l-A/97 (Old Civil Suit No. 84-A/91 by the learned IIIrd Additional Judge to the Court of Dist. Judge, Raipur, whereby the suit filed by the appellants for partition of the suit property, lands and house described in Schedule-1 annexed with the plaint has been dismissed.

2. Facts material for disposal of this appeal, in brief compass, are that Sumarmal Menghani and Wadhuram are sons of Pesumal Menghani. Both the sons were the members of Hindu Undivided Family, after the death of Pesumal Menghani, they became exclusive owners of entire movable and immovable property left by Pesumal Menghani. In the year 1950 Sumarmal Menghani died in Pakistan and Wadhuram became Karta of Hindu Undivided Family who started managing and enjoying the affairs of joint properties. Out of the income of Hindu Undivided Family, Wadhuram raised funds and sent the same to his son Chunilal who was at Jabalpur and Raipur for purchasing the property. The suit house and lands were purchased out of the income of properties belonging to Hindu Undivided Family, therefore, the suit property also belonged to the family of appellants and respondents No. 1 to 4 who were the members of Hindu Undivided Family. In Urban Ceiling Case No. 359-A/90-C (1) 76-77, respondent No. 1 Wadhuram deliberately took the stand of Hindu Undivided Family consisting of himself and his three sons, and therefore, only 8000 sq. m. of land was realized and remaining land was declared surplus and acquired by respondent No. 5/ State. Respondents No. 1 to 4 out of that land sold 20000 sq. ft. to Shri A.K.S. Minhas whose heirs are respondents No. 6 to 9. Appellants claiming partition of the suit property served legal notice and served notice on the respondents for realization of surplus land under Section 80 of the C.P.C., Prior to it, respondents No. 1, 2 and 4 in a community meeting had admitted in writing entitlement of appellants for half of the share, As respondents did not comply with the notice served on them, the appellants instituted a suit for partition and separate possession.

3. Respondent No. 3 was proceeded ex parte. Respondent No. 5 did not file any written statement. Respondents No. 1, 2 and 4 refuted the claim of the appellants and categorically claimed the property to be self-acquired property of respondents No. 1 to 4. The sale in favour of Shri A. K. S. Minhas by respondents No. 1 to 4 is a lawful transfer. They further pleaded that the appellants have no right, title or interest over that land, therefore, necessity of their consent was not required, They challenged the maintainability of the suit and also raised the question of limitation and valuation of the suit, Respondents No. 6 to 9 refuting the claim of the appellants have averred that they have lawfully acquired the land. The land was sold to late Shri A.K.S. Minhas by respondent No. 4 who was the owner of the land and Was competent to sell.

4. Parties in support of their case have adduced oral and documentary evidence. Learned Court below minutely appreciating the evidence held that the suit property had not been acquired from the funds of the property belonging to Hindu Undivided Family and respondent No. 1 was not the Karta of joint property of Hindu Undivided Family. The land transferred in favour of respondents No. 6 to 9 is free from fraud or misrepresentation, the sale in favour of respondent No. 6 and her late husband has been made in accordance with law and they are in possession of the land purchased by them. The suit filed by the appellants is not maintainable. Considering the above finding the learned Court below dismissed the suit.

5. Learned Counsel for both the parties are heard. Record of lower Court perused.

6. In D.S. Laxmaiah v. Balasubrahmanyam , Hon’ble the Apex Court has held that the property cannot be presumed to be joint family property merely because of existence of joint family. Burden to prove the property to be the joint lies on the person who asserts so. But if he proves that the family possessed sufficient nucleus with the aid of which joint family property could be acquired then presumption would be that the property is joint and onus would shift on the person claiming it to be self-acquired property and on failure to establish the nucleus held burden of proof would remain on the person who asserts the property to be the joint property. Hon’ble the Apex Court also held in Kuppala Obul Reddy v. Bonala Venkata, Narayana Reddy reported in AIR 1984 SC 1171 that there may be presumption of Hindu Undivided Family, but there can be no presumption that the joint family possesses the joint family properties.

7. Learned trial Court after meticulous appreciation of evidence held that in 1947 property held by Sumarmal and Vadhumal in Pakistan had been partitioned and both the brothers held their share and were in possession of their respective shares.

8. Wadhuram (DW/1) in his evidence has deposed that partition between himself and Sumarmal took place in 1947. Partition was done by their uncle. In 1950 Sumarmal died. Properties after partition were held by both the brothers separately. His oral evidence has been corroborated by Chunilal (DW/2). Laxmi (DW/3) who is the sister of Bhagwani Devi and Davari Bai. She has categorically stated that partition took place in her presence.

9. Bhagwani Devi (PW/1) has deposed in her statement that in Pakistan they have a joint house and she and Chandrabhan jointly sold it for Rs. 50.000/- (Rupees fifty thousand). Rs. 15.000/- (Rupees fifteen thousand) was kept by Chandrabhan and she took the remaining amount i.e., Rs. 35.000/- (Rupees thirty-five thousand). Chandrabhan obtaining documents from Vadhumal sold two shops. In cross-examination she has stated that the lands situated at Jafarkhan, Jafarabad, Sokhbahra, Saharampur, Malugaon, Kotdhoti, Akhiro, Kandkot, Vakro were recorded in her husband’s name. But, after the death of her husband, the lands were not recorded in her son’s name. This statement itself indicates and shows the fact that the house which was in the joint name has been sold and lands in various villages were recorded alone in the name of her husband and some property was sold by Chandrabhan alone, it means all the properties in Pakistan belonging to family was not joint, but held by both the brothers separately. Amarlal (PW/3) has been adduced in evidence by the plaintiff to substantiate that Sumarlal and Vadhumal were joint, but his evidence to support the said fact cannot be accepted because according to his own statement he left Pakistan in 1948 when he was aged about 10 or 12 years. He has no knowledge about the lands and houses belonging to both the parties. Documents – Ex. D/1, D/2 and D/3 clearly describe the lands and also described the I share of Sumarlal and Vadhurnal as well as I Vadhumal and Shrichand.

10. From the evidence on record, oral evidence adduced by the appellants is not such which may be accepted to prove that all the properties lying in Pakistan were Jointly held by Sumarlal and Vadhumal or all the properties lying in Pakistan are held by appellants and respondents No. 1 to 4 as Hindu Undivided Family property. From the oral and documentary evidence adduced by the respondents No. 1 to 4, it is acceptable that in Pakistan Sumarlal and Vadhumal held the properties, but partition had taken place between them and thereafter they are holding property which falls in their share.

11. To prove that suit property has been purchased out of the funds realized from Hindu Undivided Family property, it is necessary for the appellant to adduce specific evidence regarding the properties sold or income derived from Hindu Undivided Family property and spent in purchasing of the suit property. Which Hindu Undivided Family property has been sold or out of income of which undivided family property, the suit property has been purchased, no specific evidence is brought on record by the appellants whereas Chunilal (DW/2) in his evidence has deposed that after obtaining migration certificate he came to India and started living at Raipur in 1962. He purchased one house at Naharapara and he also purchased plots at Shankar Nagar and near T. V. Tower. He also purchased 14 acres of agricultural lands at village Mova. For purchasing all these properties, he invested his own money which he earned here and the money received from his father who after selling his share sent some money to him, Vadhumal (DW/1) to corroborate the statement of Chunilal (DW/2) has deposed that his son Chunilal was living at Raipur. Some of the lands in Pakistan were sold by him and he left there some of the lands. After selling the lands he has given money to Chunilal for buying property at Raipur. The suit property has been purchased by Chunilal. Chunilal was living at Raipur since 1962 after obtaining migration certificate from Pakistan and was purchasing property at Raipur, therefore, presumption will be there that he was purchasing property out of his own income or money received from his parents. Therefore, the oral evidence of Chunilal (DW/2) duly corroborated with the evidence of Vadhumal (DW/1) is trustworthy and it was acceptable that the suit property was self acquired property of respondents No. 1 to 4.

12. Ex.P/11, 12, 15, 17, 18 and 20 do not relate to suit property. Ex. P/13 dated 9-6-1986 relates to house situated at Naharapara, Vadhumal (DW/1) and Chunilal (DW/2) although admitted their signatures, but they have categorically stated that their signatures have been taken on blank papers. To prove Ex. P/13, witness before whom the document was said to be written, has not been produced in evidence. Ex, P/13 does not bear the signature of PW/2, Dr. Ashok Wadhwa or his father, Ex. P/13 has not been proved in accordance with law. Ex. P/14 said to be executed by Chunilal. Chunilal (DW/2) clearly says that he signed on blank papers. Ex. P/14 has also not been proved by the appellants in accordance with law. Ex. P/16 has been executed by Wadhuram. Wadhuram has admitted his signature, but clearly states that he signed only on blank papers. Appellants by specific legal evidence, have not proved the said documents. The documents do not unveil that the disputed property has been purchased from the funds of Hindu Undivided Family. Therefore, from all those documents also it cannot be presumed that the suit property has been purchased by the respondents No. 1 to 4 from the funds of Hindu Undivided Family. That apart, in those documents, some admissions have been recorded to the effect that Shrichand has also right over suit property but that admission has no legal validity till it is proved that the property is acquired from the fund of joint family property.

13. From the aforesaid discussion, I am of the opinion that the learned Court below who taking into consideration all the points raised by both the parties and meticulously appreciating the evidence decided that both the parties have partitioned their joint property in 1947 and the suit property has not been purchased from the funds of joint Hindu Undivided Family property, does not commit any illegality or irregularity and the finding given by the trial Court also does not appear to be erroneous or illegal.

14. When it was not proved that the suit property has been acquired from the funds of Hindu Undivided Family of appellants and respondents No. 1 to 4, then the question of I acquisition of some land by the State as surplus land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and the sale in favour of A.K.S. Minhas by respondents No. 1 to 4 are not liable to be challenged by the appellants. Therefore, the appellants who have no right title or interest in the suit land, have no power to challenge its acquisition by the State or its transfer by respondents. After due consideration of evidence on record, I agree with the findings of the lower Court which after due appreciation of evidence and considering all the grounds has recorded the findings on issues raised in the suit.

15. The impugned judgment, decree and findings given by the trial Court, in my opinion, do not suffer from any infirmity, illegality or irregularity, therefore, no interference is called for.

16. In the result, the appeal fails and is dismissed. Parties to bear their own costs.

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