JUDGMENT
A.K. Parichha, J.
1. This is an appeal by some of the defendants against the judgment and decree passed by the learned Subordinate Judge, Jagatsinghpur in Title Suit No. 143 of 1973. The respondent Nos. 1 and 2 as plainiiffs filed that suit for partition of the suit properties and allotment of 1/2 share in the Schedule ‘A’ and ‘B’ properties, 1/4th share in Schedule ‘C properties and also for allotment of Ac.0.08 dec. out of Schedule ‘D’ properties of the plaint.
2. The plaintiffs’ case, in brief, was that the plaintiffs and defendants 1 to 8 are all descendants of the common ancestor Manguli Lenka, who died in a state of jointness with his two sons Bisuni and Dhuli about 40 years before filing of the suit. After death of Manguli, Bisuni and Dhuli remained in jointness and Bisuni being the elder brother acted as manager and ‘karta’ of the joint family. Dhuli died some times in 1950 leaving the plaintiffs as his heirs. Since plaintiff No. 1 was a child and plaintiff No. 2 is a paradanashin illiterate lady, defendant No. 2, was assisting them in day to day affairs. It was alleged by the plaintiffs that taking advantage of such a situation, defendant No. 2 in collusion with his father, Bisuni manipulated some documents describing himself as adopted son of Dhuli Lenka, although there was no such adoption. The plaintiffs specifically pleaded that Schedules A, B, C and D properties of the plaint belong to the joint family and it has never been partitioned by metes and bounds although parties are possessing portions of these lands for convenience. It was further alleged that since the defendants 1 to 8 created trouble in the possession of the plaintiffs over the properties and declined the request of the plaintiffs to effect partition of the suit properties by metes and bounds, they had to file the suit for partition.
3. Defendants 1, 3 and 6 filed joint written statement denying the averments of the plaintiffs on material particulars. Their specific case was that defendant No. 2, Kanduri Charan Lenka was adopted by Dhuli Lenka after performance of essential ceremonies including giving and taking and from the date of such adoption, defendant No. 2 is being treated as the son of Dhuli; These defendants further pleaded that Bisuni and Dhuli were already separate and were enjoying the properties separately and after the death of Dhuli a formal partition was effected in 1953 in presence of the gentlemen wherein by mutual consent 0-10-0 annas share in the ancestral properties was given to Bisuni and his branch and 0-6-0 annas share was allotted to the plaintiffs and defendant No. 2, who represented Dhuli’s branch. It was further mentioned that although Schedule ‘A’ property is a joint family property, the properties mentioned in Schedule ‘B’ and ‘C’ are self-acquired properties of Bisuni and his son and the plaintiffs have no share in such properties. The maintainability of the suit was also challenged by these defendants on the ground that after the complete partition in 1953, the plaintiffs are not entitled to reopen the partition, that the suit is bad for non-joinder of necessary parties, that the suit is barred by limitation and that it suffers from lack of cause of action.
4. Defendant No. 2 filed separate written statement admitting the averments made by the plaintiffs in paragraphs 2,3,4, 6 and 7 of the plaint but claiming, inter alia, that he is the adopted son of Dhuli Lenka. He denied the allegations that the documents relating to adoption are fake and fabricated or that they were snatched from the plaintiff No. 2 taking advantage of her illiteracy. Defendant No. 2 also pleaded that the properties mentioned in the Schedules of the plaint were acquired by joint family in the name of different members of the joint family with the aid of joint family nucleus.
5. Defendant Nos. 4, 5 and 8 adopted the written statement of defendant Nos. 1, 3 and 6. Defendant Nos. 9 to 16 were absent and were set ex parte. On consideration of the pleadings of the parties, the following issues were framed by the learned trial Court.
(1) Is the suit maintainable ?
(2) Have the plaintiffs any cause of action”?
(3) Is the suit barred by limitation ?
(4) Is the suit property valued and proper court fee has been paid ?
(5) Is the suit for misjoinder and non-joinder of proper and necessary parties ?
(6) Is the suit genealogy correct and is the D. 2 Kanduri the adopted son of Dhuli ?
(7) Is the suit schedule B property acquired out of the joint family funds in the names of different defendants and as such liable for partition ?
(8) Is the plaintiff’s claim of share correct ?
(9) To what relief, if any, is the plaintiff entitled ?
(10) Whether the coparcenary property of plaintiffs and D. 1 to 8 has sufficient nucleus for acquisition of the B, C and D schedule properties ?
(11) Was there any parties of the joint family property in the year 1950 and 1953 respectively amongst Bishuni and Dhuli, the plaintiff and Bishuni’ s father of D-1 to 8 ?
(12) Whether B, C and D schedule property purchased in the name of different defendants are self acquired property or acquired in the side of joint family property or purchased out of the income of Dhuli ?
6. The plaintiffs examined four witnesses, p.w.4 being plaintiff No. 2. They did not produce any document. Defendant Nos.1, 3 and 6 examined 7 witnesses and produced several documents, which were marked as Exts. A to U. On consideration of these evidence, learned trial Judge concluded that defendant No. 2 is the adopted son of Dhuli Lenka, that Bisuni Lenka was the Manager and Karta of the joint family, that joint family continued till 1953 when there was severance of joint status, that different acquisitions made by Bisuni Lenka shown in Schedule ‘B’ of the plaint were from the joint family nucleus and are joint family properties, that ‘C’ schedule properties having been acquired in the year 1959 after severance of joint status of the family is separate property of defendant No. 1. He further held that the suit does not suffer from non-joinder of necessary parties, want of limitation, or cause of action. Consequently, the learned trial Judge decreed the suit on contest against the defendant Nos.1 to 6 and 8 and ex parte as against defendant Nos.9 and 16 and allotted the plaintiffs and defendant No. 2 together 8 annas share in Schedule ‘A’ and ‘B’ properties and 1/7th share in Schedule ‘D’ properties. Not being satisfied with such judgment and decree, defendant Nos. 1, 3, 4, 5, 6 and 8 have preferred the present appeal basically challenging the finding of the learned trial Court on issue Nos. 7, 10, 11 and 12.
7. Mr. Mahadev Mishra, learned Counsel appearing for the appellant mainly challenged the findings of the learned trial Court on issue Nos. 7, 10, 11 & 12. According to him, the findings of the learned Court below that there was sufficient nucleus out of the income of the joint family and that Bisuni was acting as ‘karta’ of the family are against the evidence on record. He also submits that the learned trial Court illegally and erroneously put onus on the defendants to prove the self-acquisition of the properties,particularly when the plaintiffs had failed to satisfactorily discharge onus of establishing that there was sufficient nucleus in the joint family. He also challenged the finding that there was severance of joint family status in the year 1953. In essence, Mr. Mishra submits that the findings of the learned trial Court on the above noted issues are legally and factually incorrect.
8. Although the respondents entered appearance and several counsel have been engaged on their behalf, no one appeared to offer the argument on behalf of the respondents.
9. The positive case of the plaintiffs was that Bisuni being the elder brother, acted as ‘Karta’ of the family and so, the properties mentioned in Schedule ‘B’, ‘C’ and ‘D’ of the plaint were acquired in his name out of the joint family fund. As against this, the plea of the defendants was that those properties are self-acquired properties of Bisuni and his son and were never made with the aid of joint family fund. Before proceeding to decide this factual controversy, it will be profitable to note the legal principle on the subject. Law is settled that there is no automatic presumption that the property acquired by a member of joint family and in possession of the family is the property of the joint family. the burden of proving that any particular property is a joint family property, is in the first instance upon the person, who claims it as coparcenary property. But if possession of the nucleus of the joint family is either admitted or proved, any acquisition made by the member of the joint family would be presumed to be joint family property. it is only after the possession of adequate nucleus is shown that onus shifts on the person who claims the property as self-acquired, to affirmatively make out that the property was acquired without any aid from the family estate. This presumption is, however, a rebuttal presumption and can be dispelled by production of cogent evidence. This view finds support from the observation of the apex Court in the case of S.K. Kangra v. Narayandevjee Kangra .
10. P.W. 1 stated that at the time of death of Manguli, the joint family had 7 to 8 acres of land and after death of Manguli, his sons Bishuni and Dhuli jointly possessed that land. Similar is the evidence of P.W. 2, who stated that Dhuli and Bishuni were possessing about Ac.8.00 of land though, according to him Ac.4.00 were ancestral and Ac.4.00 were self-acquired property. P.W. 3 stated that Dhuli and Bishuni had 7 to 8 acres of ancestral landed property. P.W. 4, who is the plaintiff No. 2 also stated that Bishuni and Dhuli possessed the landed property jointly after the death of Manguli. The defendants admitted that Schedule ‘A’ property of the plaint is the ancestral property. Further more D.W. 4, who was a defendant also admitted that Schedule ‘A’ property is the ancestral property and that Schedule ‘B’ property is partly ancestral and partly self-acquired property. P.Ws. 1 to 4 categorically stated that there was sufficient income from the joint family lands to create the surplus nucleus. This claim of P.Ws. was not challenged or rebutted by the defendants. In fact there was no suggestion even to these witnesses that the joint family had no surplus income. According to P.Ws. 1 to 4 besides the income from the landed property, Dhuli who was working at Calcutta was sending money to Bishuni, who was managing the affairs of the family in the village. Though the specific evidence was not adduced to show when and how much money was sent by Dhuli, it is the admitted case of the parties that Dhuli was working at Calcutta and was earning money and that on some occasion he sent money to Bishuni. It is common knowledge that when one of the family members get employed outside the State, he sends money to the family staying in the native village for their maintenance and other purposes. So, the claim that Dhuli was sending money to Bishuni who was the head of the family is quite believable.
11. There was a claim by the defendants that Bishuni never became the Karta or manager of the joint family and therefore, there was no occasion for him to receive the money from Dhuli or acquired the property for the joint family. Though defendants disputed in their written statement that Bishuni became the Karta and managing partner of the joint family, but such plea was not supported by their own witnesses. D.W. 1, who is the family barber of the parties clearly stated in his cross-examination that Bishuni Lenka was managing partner of the house consisting of himself and Dhuli Lenka. D.W. 2, who is an independent person also stated that Bishuni Lenka was looking after the joint family property till his death and was also possessing and maintaining the documents of the properties. With such evidence and the circumstances, there cannot be any doubt that Bishuni was looking after the family as Karta. Thus, it was established from the evidence that the family had surplus income to form the landed properties as well as form the income of some members of the family and Bishuni was the karta of the family. In that situation, the initial onus was discharged by the plaintiffs and the burden was shifted to the defendants to show that the properties mentioned in Schedules ‘B’, ‘C’ and ‘D’ of the plaint were acquired by Bishuni from his own fund without any aid from the joint family nucleus. In this regard, the defendants have not produced any evidence to show that Bishuni had an independent source of income. P.W. 7, who is the gentleman of the village stated that Bishuni had no source of income. No suggestion was made to this witness or any other witness that Bisuni had independent source of income. None of the witnesses examined on behalf of the defendants spoke a word that Bisuni Lenka had any independent source of income. These witnesses have also not stated that the joint family had no surplus income. They have simply stated in parrot like manner that the properties were self-acquired properties of Bisuni Lenka. With such evidence, the presumption was never rebutted and the burden was not discharged by the defendants.
12. It is the admitted case of the parties that Dhuli Lenka died in the year 1950 and that the brothers continued to be joint till the death of Dhuli. D.W. 2 stated that the joint family status continued upto the year 1959. Besides this oral evidence, the unregistered partition deed, Ext. A was produced by the defendants to show that there was partition in the family on 13.9.1953. Ext.A being an unregistered partition deed, it cannot prove the factum of partition and it cannot also be looked into for the terms of partition. Therefore, the claim of the defendants that as per Ext. A, 10 annas share was allotted to Bisuni and 6 annas share was allotted to the branch of Dhuli is not acceptable. However, as has been said in the case of Chinnappareddigari Pedda Muthyalareddy v. Chinnappareddiguri Venkatareddy and Ors. , an unregistered deed of partition like Ext.A can be looked into for collateral purposes such as severance of joint status of the family. The underlying principle of this proposition is that where partition taken place, the terms of which are incorporated in an unregistered document, that document is inadmissible in evidence and cannot be looked into for the terms of partition, but such document containing an expression of univocal desire to separate by the nucleus of the joint family can be considered for the purpose of establishing severance of joint status in the family from the date of that date. In that view of the matter, in the present case, the severance of joint status of the family can be presumed from dated 13.9.1953. The plaintiffs put forth a case that taking advantage of the illiteracy of plaintiff No. 2 and the minor-hood of plaintiff No. 1, this document was snatched by using fraud. Since it is there in the evidence that the plaintiffs had good relationship with defendant No. 2 and the witnesses like P.W. 1 and defendant No. 7 were present at the time of execution of the deed and also the fact that execution of the deed and the signature thereon are not disputed, the plea of the plaintiffs that it is a fake document is not acceptable. So, taking into note of the over alt evidence available in this regard, it can be safely presumed that the joint status of the family came to an end on 13.9.1953. Law is clear that any acquisition made by a member of the family subsequent to the severance of joint status would be self-acquired property of that person. This view is supported by the rulings of a Division Bench of this Court in the case of Raghunath Panda v. Radhakrishna Panda and Ors. . So, the properties acquired before 13.9.1953 in the name of defendant No. 2 and his father Bisuni would be joint family property, but the properties acquired by them after that date would be their self-acquired property. The finding of the learned trial Court that the properties purchased by Bisuni Lenka under Ext. H dated 1.4.1946, Ext. E/1 dated 15.3.1948, Ext. F/1 dated 23.3.1949, Ext. B/1 dated 10.1.1951, Ext. F/1 dated 23.3.1949 and Ext. J/1 dated 19.7.1948 would be treated as acquisition by manager and karta of the family and would be joint family properties and that Schedule ‘C property acquired by defendant No. 1 in the year 1959 after severance of the joint family status would be the self-acquired property of defendant No. 1 and to be excluded from the partition is thus legally correct.
13. It is admitted by the parties that the properties described in Schedule ‘D’ of the plaint were purchased jointly by plaintiff No. 1 and defendant Nos. 1 to 6. Since specific share has not been indicated in the documents Exts. L & M, each of the purchasers would be entitled to 1/7th share. The properties purchased by defendant No. 1 under Ext. E in respect of Ac.0.19 dec. of land in plot No. 1507 shown in Schedule ‘D’ of the plaint being the self-acquired property of Karunakar, is to be excluded from partition. So far as Schedule ‘E’ property is concerned, Kanduri and Bisuni have sold these lands to defendant Nos. 9 to 13. The allegation of the plaintiffs is that the lands were sold without any legal necessity and without the consent of the plaintiffs. Though this allegation was controverted in the written statement, no evidence was led to show that the lands were sold to defendant Nos. 9 to 13 for any legal necessity. Kanduri was defendant No. 2, but he. also did not come forward to say that sale of these lands was for any legal necessity. So, the conclusion of the learned trial Judge that these sales were not for any legal necessity of the family and that these lands have to be adjusted in the share of defendant No. 2 is reasonable and legally correct.
14. Defendants had raised certain objections regarding maintainability of the suit, particularly on the ground of non-joinder of necessary parties, not bringing all the properties of the family to hotchpot and want of limitation. But no evidence was led or circumstance was pointed out in the written statement, who were those necessary parties left out and how the suit was barred by limitation. Similarly, it was simply pleaded in the written statement that some properties of the family were left out of to hotchpot, but those properties were not specifically noted or explained in the evidence. That being the situation, the learned trial Judge was justified in deciding these issues against the defendants. The issue of adoption of defendant No. 2 was answered in the affirmative and that issue is not under challenge in this appeal. So, further discussion on these issues are not necessary.
15. In the aforementioned situation, there is hardly any scope to upset the findings and conclusions of the learned trial Court. Therefore, in the result, the impugned judgment and decree are confirmed and the appeal is dismissed. No cost.