JUDGMENT
D.G.R. Patnaik, J.
Page 0325
1. The appellant in this appeal is the plaintiff in the original suit. She alongwith defendant nos. 1, 2 and 3 are the legal heirs of the common ancestor, Buddhu Dusadh. The Respondent no. 5 is the son of the defendant no. 2. The plaintiff filed the suit before the court below for partition of the properties described in Scheduled-“A” and Schedule-“B” of the plaint claiming one-fourth share in the same besides mesne profits of the suit properties. The Suit, registered as Partition Suit No. 37 of 1993 in the court of the Sub-Judge, Ranchi was dismissed on contest vide judgment dated 25.09.1996. The instant appeal by the plaintiff has been filed against the aforesaid impugned judgment and its corresponding decree.
According to the plaintiff, the lands recorded in Revisional Survey Khata No. 147, was originally recorded in the name of” the plaintiff’s father Buddhu Dusadh and his brother Nanka Dusadh. The lands were partitioned between the two brothers, and thereafter each of them had been coming in separate possession of the respective shares. The suit lands were allotted to the share of the plaintiff’s father, Buddhu Dusadh. Buddhu Dusadh died in the year 1971 leaving behind him the plaintiff and Page 0326 the defendants 1, 2 and 3 as his legal heirs and successors, and they have been coming in joint possession of the movable and immovable properties left by Buddhu Dusadh. The properties jointly held include the properties subsequently acquired out of the joint fund of the family and there has been no partition of any property between the heirs of Budhu Dusadh. While this situation had continued, the joint family had decided to start a business of Gas Agency and the investments for the business was made from the joint funds of the joint family in the year 1993. The business was established under the name and style of M/s. Jivasis Gas Service and the defendant no. 3, being the only unemployed member of the family, had filed an application before the concerned authorities of M/s. Hindustan Petroleum Corporation Ltd. for the grant of license for running the Gas Agency. The license was granted in the name of the defendant no. 3 whereafter the business was established with the investments from the joint family funds. The claim of the plaintiff is that she has one forth undivided share in the said business and yet she was deprived of her share in the profits of the said business. The plaintiff has further claimed that the defendant nos. 1 to 3 have been misappropriating the profits of the business and have opened several Bank accounts in their own names and in the names of the defendant no. 5 and from the profits of the business, a Maruti Car bearing Registration No. DL-5-7054 and two Auto Rickshaws were purchased by the defendants and the vehicles also constitute the joint family properties. The plaintiff has further claimed that the land alongwith the house structures standing thereon situated at Mohalla Chadri within ward No. VII, bearing Municipal Holding No. 456, old corresponding to new municipal holding No. 1506 within Plot No. 2171, was acquired in the year 1992 from the joint family funds and from the profits of the Gas agency business and the said house also constitutes the joint family property. The further case of the plaintiff is that in addition to the vehicles, substantial clothes and ornaments worth Rs. two lakhs were purchased from the profits of the Gas Agency business and in addition, two canteens, one at Gandhinagar Hospital, C.C.L.-Ranchi and another at Nai Sarai C.C.L. Hospital, Ramgarh have also been acquired out of the profits of the Gas Agency business. A Bacon factory and land at Sikdari, Ranchi were also acquired from the incomes from the Gas Agency business and all these properties including the Gas Agency business, which have been described in Schedule-“B” of the plaint, constitute the joint family properties.
The defendant nos. 1 to 3 had offered contest to the suit by filing their joint written statements. While defendant no. 5 had filed a separate written statements, the grounds taken by him in his written statement are identical to the grounds taken by the defendant nos. 1 to 3.
The contesting defendants have challenged the maintainability of the suit claiming that there was no cause of action for the Suit and further that the Suit is barred by limitation, adverse possession and ouster, besides being bad for misjoinder of necessary parties as because defendant no. 4 is not a necessary party. It was also claimed that the suit was barred by the principles of res judicata as because Ramakant Prasad, who is’ the husband of the plaintiff had earlier instituted a Title Suit No. 10 of 1988 in the court of the Sub-Judge, Ranchi against Rajendra Kumar, (defendant no. 3) for winding up the partnership firm running in the name and style of M/s. Jivasis Gas Service after settlement of all the accounts concerning the said business. The claim of the husband of the plaintiff was that he alongwith Page 0327 Rajendra Kumar (defendant no. 3) are the joint partners of the aforesaid firm and the business of the firm was started by equal and joint investments of the savings and both of them had entered into an agreement on 14.08.1984, declaring mutually, therein that the Gas Agency business would be run by them jointly and the profits and losses shall be shared equally between them. The plaintiff’s husband claimed that he had invested a sum of Rs. 20,000/- in the said business. The suit was contested by the defendant no. 3 and the same was dismissed and decreed on 31.07.1999 with a finding recorded by the court that the Gas Agency business is the exclusive business of Rajendra Kumar (defendant no. 3). Against the judgment and decree, passed in the aforesaid suit, the plaintiff’s husband had preferred an appeal before the Judicial Commissioner, vide Title Appeal No. 19 of 1989. The appeal was also dismissed on 15.06.1991 though for default. A Misc. Petition for restoration of the aforesaid appeal, filed by the plaintiff’s husband as Misc. Case No. 19 of 1991 was also dismissed on 27.05.1993. The contention of the defendant is that the present suit has been filed by the plaintiff in collusion with her husband after the earlier suit as filed by her husband was dismissed. The defendants add further that the plaintiff was married in the year 1965 during the lifetime of the father namely, Budhu Dusadh and since after the marriage, she has been living with her husband and in-laws and she had never led any claim of right over the land described in the Schedule “A” of the plaint. When she intended to take possession of the house properties, mentioned in Schedule-” A” of the plaint, in the year 1972 after the death of the father, she was completely ousted by the defendants and thereafter she had never led any claim of share over the house properties. Nevertheless, the defendants admit that when the father Budhu Dusadh died in the year 1972, he had left behind the Schedule-“A” property only and even though the plaintiff had disclaimed her right and share in the said property, the defendants had voluntarily agreed to give the plaintiff, her l/16th share in the aforesaid house property. The defendants’ further claim is that there is no unity of title and possession in respect of the movable and immovable properties left by late Budhu Dusadh and the properties acquired subsequently. The defendants have claimed that since after her marriage, the plaintiff was never a member of the joint family as because she was married, prior to the death of the father. The defendants further contend that late Budhu Dusadh was dependent entirely upon the agricultural produce of the land, mentioned in Schedule-“A” of the plaint and he had no other independent source of income except the usufructs of the lands, which were just sufficient for the maintenance of the large number of the members of the family. The defendants have claimed that there was no joint family nucleus as because the landed properties mentioned in Schedule-“A” did not yield any surplus income for enabling acquisition of any other properties, much less the properties mentioned in Schedule-“B” of the plaint. Denying the plaintiff’s claim that the Gas Agency business was started with joint family funds, the defendants have categorically stated that there were no joint family funds at all. The specific case of the defendants is that the defendant no. 3 had applied for obtaining the license for running the Gas agency business in the year 1983 and after being interviewed by the Hindustan Petroleum Corporation Ltd., the defendant no. 3 was given license by the said Company to establish his business of L.P.G. distributorship. The defendant no. 3 also obtained a license under the Explosive Substance Act, which was granted to him on 18.02.1986. He applied for sanction of a loan to the State Bank of India, Andra Branch, Ranchi for a sum of Page 0328 Rs. 1, lakh. He was granted a term loan of Rs. 1 lakh out of which Rs. 50,000/- was for the construction of the Godown and the sum of Rs. 50,000/- by way of cash credit facility for investment in the business as initial capital, and thereafter the defendant no. 3 established the Gas Agency business as the sole proprietor thereof. It was when the defendant no. 3 failed to repay the loan amount, the Bank had instituted a Certificate Case vide Certificate Case No. 31 of 1989 against him for realization of sum of Rs. 43,434/- besides another case vide Certificate Case No. 133 of 1989 for realization of a sum of Rs. 10,081/-. The defendant no. 3 managed to and cleared all the dues on 14.07.1989, whereafter both the Certificate Proceedings were disposed of. The defendants have further claimed that the Maruti Car and the two auto Rickshaws and the other movable properties mentioned in the Schedule-“B” of the plaint, were purchased from the profits of the Gas Agency business and not from any joint family fund. In fact the Maruti Car was purchased by the defendant no. 5, Jitendra Kumar by his own separate income, which he used to earn by serving as an Accountant/Clerk in the Gas Agency business and from the savings derived by income by way of part time job. Likewise, the defendants have claimed that the double storied building situated at Mohalla Chadri, referred to at Para 16 of the plaint was purchased by the defendant no. 3 and similarly the lands on which a house, which is double storied situated at Mohalla Chadri was purchased by him and the house was constructed by him from the income derived from the Gas Agency business and with money advanced to him by his father-in-law and the said land and building is in the exclusive possession of the defendant no. 3 and though the defendant nos. 1 and 2 are living in the same house but they have no right, title and interest or any share in the said properties. The defendant no. 3, has further claimed that the Bacon factory at Sikdiri was also started by him by his exclusive earnings and with money obtained from the Bank by way of loan, although, on account of persistent loss in the business he had to close the said business.
2. On the basis of the rival pleadings, the learned court below had framed the following issues:
1. Is the suit as framed maintainable?
2. Has the plaintiff any cause of action to sue?
3. Are the properties described in Schedule- “B” to the plaint joint, acquired out of joint family fund?
4. Was there any sufficient nucleus in the properties, fully described in Schedule-“A” to the plaint, from which any of the items of Schedule-“B” properties were acquired?
5. Is there any unity of title and possession between the plaintiff and defendant has 1 to 3 and 5 in reaped to the properties fully described in Schedule “B” to the: plaint?
6. Are the properties as pleaded in the written statement, self acquired properties of the defendants?
7. Is the plaintiff entitled to a decree for partition having 1/4’h share in the properties mentioned in Schedule-“B” to the plaint?
8. To what other relief or reliefs, if any, is the plaintiff entitled?
3. It is relevant to note here that the suit was decreed in part on admission in respect of the properties mentioned in Schedule-“A” of the plaint on 16.08.1995 Page 0329 and thereafter the court had proceeded for adjudication of the dispute in respect of the properties mentioned in Schedule-“B” of the plaint.
It may also be noted here that the properties mentioned in Schedule-“B” of the plaint have been individually described in item nos. 1 to 7.
4. On the relevant issue nos. 3 to 6, which were taken jointly for determination, the trial court had recorded its finding that the plaintiff has not established that there was joint family nucleus, which could be derived from the Schedule-“A” properties. The trial court has observed that the plaintiff neither averred in her plaint nor adduced any evidence to indicate the amount of income, if any, derived from the Schedule-“A” properties and the savings, which could be considered as surplus from such income. The trial court had proceeded to record its further finding that even though there was no partition of the joint family properties amongst the heirs of the common ancestor in respect of the Schedule-“A” properties but there was no joint family nucleus, which could support the plaintiffs claim that the properties mentioned in Schedule-“B” of the plaint could be acquired from the income derived from the Schedule-” A” properties. The trial court had further recorded its finding that the Gas Agency business mentioned in Item No. 1 of Schedule-“B” was exclusively acquired by the defendant no. 3 and the other properties mentioned in various items of Schedule-“B” were also acquired by the defendant no. 3, some of which were acquired together with the defendant no. 5 and that none of the properties mentioned in Schedule-“B” could be considered as joint family properties nor could the plaintiff claim any share in the same.
5. Assailing the impugned judgment passed by the learned court below, the appellant has claimed that the learned court below has totally misdirected itself by failing to appreciate the evidences adduced by the plaintiff in support of her claim that the properties mentioned in Schedule-“B” of the plaint were acquired by the joint family funds.
Mr. V. P. Singh, learned Senior counsel for the appellant claims that the learned court below has erred in failing to give due importance to the letter written by the defendant no. 3 to M/s. Hindustan Petroleum Corporation Ltd. (Exhibit-1), wherein the defendant no. 3 had categorically stated that he had arranged the seed money for setting up the Gas Agency business by mortgaging his lands. Learned Counsel adds further that the defendant no. 3 has also admitted the fact that the aforesaid letter bears his writing and signature and, as such, the learned court below ought to have considered that the money invested for the Gas Agency business was raised by mortgaging the undivided house property of the joint family. Learned Counsel argues further that in view of the admission made even by the defendants that the Scheduled A property mentioned in Schedule-“A” of the plaint continue to remain joint property of the heirs of late Budhu Dusadh, the said properly was in itself capable of generating income and the income had constituted the joint family nucleus. Learned Counsel adds that the plaintiff had led sufficient evidence to establish that there was a joint family nucleus, and, therefore the learned court below ought to have considered that the plaintiff has discharged her onus and it was, therefore, left upon the defendants to dislodge the presumption that the properties mentioned in Schedule-“B” of the plaint were acquired not from the joint family nucleus and it was their self acquired properties. Learned Counsel, by adverting to the evidence of the defendant no. 3, claims that even as admitted by the defendant no. 3, the Schedule-“A” Page 0330 property remained intact with the family after the death of the father of the plaintiff and that the said property was mortgaged to generate money for initial investment for the Gas agency business mentioned as Item No. 1 in the Schedule-“B” and this was evidence enough to provide joint family nucleus. Learned Counsel adds further that the learned court below has failed to appreciate that admittedly substantial investments for establishing the Gas Agency business was made much prior to the sanction of the grant of loan by the Bank and the source of such investments has not been explained by the defendants either in their written statements or by the defendant no. 3 in his evidence. In such circumstances, the evidence adduced by the plaintiff Exhibit 1 that the investments were made by mortgaging the joint family lands, should have been accepted and considered by the learned court below. Learned Counsel adds that even according to the deposition of the defendant no. 3 (D.W.1), an investment of Rs. 1,60,952/- was made in establishing the Gas Agency business, whereas, the defendant no. 3 has offered explanation in respect of a sum of Rs. 1 lakh only claimed to have been borrowed from the Bank but he has failed to explain the source of the balance amount of Rs. 60,952/-, which was invested for initiating the business. Learned Counsel for the appellant has found further fault in the impugned judgment on the ground that the trial court has erroneously traversed through past litigations between the contesting defendant no. 3 and the husband of the plaintiff, though the plaintiff’s husband was not made a party to the suit and, as such, the result of any such past litigation, could not be held binding upon the plaintiff to prohibit her from claiming her one-forth share in the properties. Learned Counsel seeks to point out a further fault in the impugned judgment by contending that the learned court below has misconstrued and misinterpreted the evidence on record by observing that since late Budhu Dusadh had taken a loan in the year 1966-67 for the purposes of meeting the family requirements, the inference is that the Schedule-“A” property did not yield sufficient income for meeting even the family needs, but while recording such observations the learned court below has ignored the fact that the loan was repaid by late Budhu Dusadh in between December, 1967 to May, 1972 from the profits derived from the Schedule-“A” properties, besides meeting the expenditure towards the maintenance of the family, education of the children and marriage of the plaintiff, all of which have been admitted by D.W. 1. The trial court, therefore, ought to have considered that the income derived from Schedule-“A” properties was sufficient not only to meet the family expenditure but was sufficient to retain surplus money as savings which could enable not only the repayment of loan but also for investing the money in the Gas Agency business.
6. On the other hand, Mr. Devi Prasad, learned senior counsel appearing for the Respondents has denied and disputed the entire grounds of the appellants as being misconceived and baseless. Referring to the principle of law relating to presumption of co-parcenery, learned Counsel explains that under the Hindu Law, there is no presumption of the property being the joint family property only on account of existence of the joint Hindu family. It is upon the person, who asserts that the property is a joint family property to prove that there was nucleus with which the joint family property could be acquired.
Referring to the pleadings and evidences adduced by the plaintiff, learned Counsel would argue that the plaintiff has nowhere stated in her plaint, any specific description about the nature of the lands or the actual income derived from the lands left behind Page 0331 by the common ancestor and that the entire proposition as put forward by the plaintiff is totally misleading and false and this would be evident from the fact that the plaintiff’s husband had earlier laid claim of share as a partner in the same Gas Agency Business. The Suit filed by him, was dismissed on contest offered by the defendant no. 3. The claim of the present plaintiff in the instant case is based entirely on a new set of pleading contrary to what the instant case is based entirely on a new set of pleading contrary to what was earlier claimed by her own husband. Referring to the evidences, adduced on behalf of the plaintiff, learned Counsel explains further that the plaintiff had not come forward to depose herself and it was her husband, who was examined as a witness on her behalf. Learned Counsel adds that the plaintiff wanted to rely strongly and entirely on Exhibit 1 in support of her claim that for the initial investment for starting the Gas Agency Business, the lands mentioned in Schedule-“A”, which was the joint family property, was mortgaged and that the fact of mortgage was admitted by the defendant no. 3. Learned Counsel explains in this context that no such pleading was specifically made by the plaintiff in her plaint to suggest that the lands were ever mortgaged for raising any money and neither did defendant no. 3 in his evidence, admit any such claim of the plaintiff.
7. The pleadings as well as the evidences, adduced by the parties bring out the following admitted facts:
(a) That the properties mentioned in Schedule-” A” of the plaint, which constitutes the native lands belonging to the common ancestors, had continued to be held jointly by the legal heirs of the common ancestors and there was no partition of the property amongst the said legal heirs.
(b) That the properties mentioned in Schedule-“B” of the plaint were acquired long after the death of the common ancestor.
(c) That even during the lifetime of the father, the plaintiff was married in the year 1969 whereafter she began to live in the house of her husband and the in-laws.
(d) That prior to the institution of the present suit, the husband of the plaintiff had filed a suit claiming his share in the Gas Agency business as a partner, therein, and also, that he had claimed that he had invested a sum of Rs. 20,000/- in the business and that such claim was rejected by the dismissal of the suit.
8. The plaintiff has claimed that the properties mentioned in Schedule-“B” of the plaint were acquired from the joint family nucleus while on the other hand, the defendants had denied such claim and had made a counter claim that the entire properties mentioned in Schedule-“B” of the plaint are the self-acquired separate properties of the defendant no. 3.
9. The legal principle under the Hindu Law is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family, the person who asserts has the proof that the property is a joint family property.
In the instant case, the plaintiff has claimed that the properties mentioned in Schedule-“B” of the plaint are joint family properties acquired out of the joint family nucleus, which was constituted from the income derived from the Schedule-“A” properties. The questions which arises for consideration is whether the plaintiff has discharged her onus for establishing that there was any nucleus in the form of any Page 0332 income whatsoever from the Schedule-“A” properties, which could enable the acquisition of the properties mentioned in Schedule-“B” of the plaint?
10. Referring to the evidences adduced by the plaintiff, it appears that her claim is based on the admitted position that after the death of her father, the lands mentioned in Schedule-“A” of the plaint, continued to be held jointly by her, alongwith defendants and that the said lands was capable of yielding income, sufficient enough not only to meet the family expenditure but also to leave surplus money by way of savings and such savings had constituted the joint family nucleus, from which the properties mentioned in Schedule-“B” were acquired. To prove her claim, the plaintiff has adduced the evidence of her own husband, though she has not come forward to depose at the trial. From the pleadings of the plaintiff as stated in her plaint read with the oral evidence of the witnesses adduced by her, it appears that both the pleadings and the evidence are vague and unspecific. No evidence has been led by the plaintiff to specify the actual income derived from the Schedule-“A” lands or the actual amount of savings from such income of any. The learned court below has rightly observed the fact that the plaintiff’s father had mortgaged his land for raising funds to meet the family expenditure, indicates that the incomes derived from the lands was not sufficient to meet the family expenditure and, as such, there is no evidence that the income derived, if any, from the Schedule-“A” lands could leave any surplus money by way of savings to constitute joint family nucleus.
11. The plaintiff has sought to rely upon the letter purportedly written by the defendant no. 3 addressed to the concerned authorities of the Hindustan Petroleum Corporation Limited, whereby, the defendant no. 3 had informed the authorities of the Hindustan Petroleum Corporation that he had arranged money for the initial investments in establishing the Gas Agency business by mortgaging his lands. The plaintiff has placed heavy reliance on this document (Exhibit 1) on the ground that the defendant no. 3 has admitted to have written the said letter and has acknowledged, therein, that he had mortgaged the lands belonging to the joint family for the initial investment in the Gas Agency business. As such, it is admitted that the investment in the business was made from the funds derived from the Schedule-“A” properties. In this context it may be noted that the plaintiff has not taken any such specific plea in her plaint that the Schedule-“A” lands were ever mortgaged for securing any loan, that too for the purpose of making investment in the Gas Agency Business. In absence of any specific pleadings on this issue, the plaintiff could not possibly lead any evidence on the said issue. Even otherwise no evidence has been brought on record to affirm that the Schedule-“A” lands was ever mortgaged after the demise of the plaintiff’s father, nor was any evidence adduced by the plaintiff to suggest the specific amount of money initially invested in establishing the Gas Agency business. The defendant no. 3, in his deposition as D.W. 1 has categorically denied to have mortgaged the ancestral lands in order to raise money for the initial investment in the Gas Agency business. The earlier claim of the plaintiff’s husband, who was examined as a witness in the present case that he had invested a sum of Rs. 20,000/- of his own, by way of initial investment as a partner in the Gas Agency business, if considered, the same contradicts the stand taken by the plaintiff. It is thus, apparent that the plaintiff has not been able to establish that there was any nucleus in the form of income derived from the Schedule-“A” lands and she in this regard has not discharged her onus. In absence of sufficient evidence adduced by the plaintiff on Page 0333 this issue, the burden to prove that the Schedule-“B” properties were exclusive properties of the defendant would not shift to the defendants. However, from the specific case of the defendants as made out in their written statements and from the evidence of the defendant no. 3, who was examined as D.W. 1, it transpires that the Gas Agency business was started in the exclusive name of the defendant no. 3, who had applied for the same and had obtained requisite license under the various statutes required for the business. The defendants have adduced sufficient evidence to confirm that the initial money required for the investment in starting the business was obtained by way of loan from the Bank and from other sources. The appellant has wanted to argue that the total amounts of initial investment in the business being more than Rs. 1,60,000/- and the explanation given by the defendant no. 3 regarding the source of money obtained by him by way of the Bank loan, was only to the extent of Rs. 1 lakh. The amount of Rs. 60,000/-, the source of which having not been explained by the defendants, it has to be treated as the money invested by the joint family funds. This plea in my opinion, is misconceived and misplaced. Mere acknowledgement by the defendant no. 3 that he had written the letter (Exhibit 1), stating, therein, that he had managed to raise money for initial investment by mortgaging the lands, cannot constitute admission on his part for the purposes of enabling any on behalf of the defendants are sufficient to draw the inference that the Gas Agency business was established by the defendant no. 3 with the money generated exclusively by him and not from any income of the ancestral lands. The plaintiff cannot take a plea that the property admittedly acquired in the name of the defendant no. 3 was blended with the joint family properties. The learned court below has adequately discussed the evidence of the parties and has assigned adequate reasons for recording its finding on the various issues involved in the dispute between the parties. I do not find any infirmity or illegality in the findings as recorded by the learned court below.
For the reasons discussed above, I do not find any merit in this appeal. Accordingly, this appeal is dismissed. With costs.