Mt. Sodhan and another vs L. Khushi Ram and others

Harnam Singh, J.—Mehta Khushi Ram plaintiff-respondent instituted the suit out of which this appeal has arisen on 17th March 1916 for possession of the suit property alleging that be and his brother Mehta Mohan Lal deceased formed a joint Hindu family and that the house in suit had been purchased out of the joint Hindu family funds. He, further alleged that on the death of Mehta Mohan Lal on 14th March he had become sole owner of the suit property by survivorship. The plaintiff then alleged that a portion of the house had been used by the plaintiff for his residence and the other portion by the widow of Mehta Mohan Lal, adding that for some time Shrimati Sodhan widow of Mehta Mohan Lal deceased and her two daughters were joint in mess with him, but later on they started separate mess although the expenses of that mess were borne by the joint Hindu family. In 1941, the relations between the plaintiff and Shrimati Sodhan defendant, however, became attained with the result that Shrimati Sodhan brought a criminal complaint under S. 420, Penal Code, against Mehta Khushi Ram and then on 14th March, she brought a complaint under S. 107 read with S. 151, Criminal P. C., against the plaintiff. In the security proceedings, Mehta Khushi Ram was arrested. He then shifted to the adjoining house and then Shrimati Sodhan took forcible possession of that part of the house which had been in possession of the plaintiff. Upon these allegations the plaintiff claimed possession of the house in suit excepting the portion shown black in the plan, Ex. P-32.

Shrimati Sodhan, Sushila and Santosh, two unmarried daughters of Mehta Mohan Lal, resisted the suit pleading that though the property in suit was purchased jointly, yet Mehta Khushi Ram and Mehta Mohan Lal did not form a joint Hindu family at that time. In any case the defendants pleaded that ever since the purchase of the house, defendant 1 had been living in the house and that the house in dispute was insufficient for the residence and maintenance of the defendants. Before the issues were framed the parties were examined. At that stage counsel for the plaintiff stated:

The plaintiff and his brother L. Mohan Lal were members of joint family. The property in dispute is a joint Hindu family property. The plaintiff was in actual possession of the rooms for which he sues. He concede that in case his allegations about the possession are incorrect, he wilt only be entitled to joint possession of the whole property.

Upon the pleadings of the parties, the following preliminary issue was framed:

(1) Can the question of maintenance and residence be decided in this case?

Now, the preliminary issue was decided against the defendants on 28th June 1945. After deciding the preliminary issue the trial Court framed the following issues on merits:

(1) Were Mohan Lal and the plaintiff not members of joint Hindu family?

(2) Is the house in dispute joint Hindu family property?

(3) Was the plaintiff in possession of the portion sued and was he dispossessed by the defendants?

On issue 1 the trial Court found that Mohan Lal deceased and the plaintiff formed a joint Hindu family. On issue 2 the Court found that the house in suit had been purchased out of the joint Hindu family funds. Finding on issue 3 that the plaintiff had been living in a portion of the house in dispute, the trial Court decreed the suit for possession of the part of the house proved to have been in possession of the plaintiff before he was forcibly dispossessed.

From the decree passed by the trial Court, defendants 1 and 2 have come up in appeal under S. 39, Punjab Courts Act. Santosh, defendant 3, has been impleaded as a respondent to this appeal.

Mr. Daulat Ram Manchanda, learned counsel for the appellants, contends that the finding of the trial Court that Mehta Khushi Ram and his brother Mehta Mohan Lal deceased formed a joint Hindu family and that the house in suit had been purchased from joint Hindu family funds is not sustainable on the evidence examined at the trial. He then contends that plaintiff had never been in possession of the property in suit and at any rate, the appellants had the right of residence and maintenance and that the plaintiff should not have been given an unconditional decree for possession, but should have been given a decree subject to a provision for the maintenance and residence of the defendants.

(After discussion of evidence on the first point the judgment proceeds):

Now, generally speaking, the normal state of every Hindu family is joint and presumably every such family is joint in food, worship and estate. Indeed, in the absence of proof of division such is the legal presumption. This joint ness is supported in the present case by entries in the bahis which show expenditure from the joint funds on the occasion of marriages of Mehta Mohan Lal deceased and his daughters. For all these reasons I am of the opinion that it has not been proved that Mehta Khushi Ram and Mehta Mohan Lal had separated at any time. Given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint and the presumption of union in the present case has not been rebutted.

With regard to acquisition of the house in dispute from the joint Hindu family funds, I am again of opinion that the entries in the bahis place it beyond any doubt that the purchase money was paid out of the joint funds. As I have already found that Mehta Khushi Ram and Mehta Mohan Lal formed a joint Hindu family and considering that the consideration for the purchase of the house came out of the joint funds, I find that the house was purchased by the two brothers as coparceners and not as joint tenants.

And this brings me to issue 3. From a consideration of the evidence examined on issue 3, I am unable to hold that the plaintiff has been in actual physical possession of the property till he was dispossessed by the defendants. The plaintiff pleaded in the plaint that he was forcibly dispossessed in May 1943. The witnesses examined by him have given conflicting evidence with regard to the time at which the plaintiff was dispossessed. On the other hand the defendant has put up a consistent case that she has been in possession of the whole of the house after the death of her husband. She stated that she was living in a part of it and had rented a portion of the house to maintain herself and her unmarried daughters. In her evidence given at the trial she stated:

Rent of the portion of the house in occupation of the tenants was wholly insufficient to maintain the defendants.

For the reasons given above I find that the plaintiff has failed to prove issue 3, the burden whereof lay heavily upon him.

Mr. Manchanda then contends that the decision of the trial Court on the preliminary issue is not sustainable. As stated above, the trial Court found on 28th June 1945 that the question of maintenance and residence could not be decided in the case out of which this appeal has arisen. Now, under Hindu law, if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased co-parceners. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. That being so, provision should be made for the maintenance and residence of the defendants before the plaintiff can be given possession of the property in suit. A similar question arose in Dhanraji Kaur v. Ram Raj A. I. R. 1942 ALL. 135 : (199 I. C. 595). In that case Verma, J. said:

Learned counsel for the defendant-appellant urges that a decree for possession should not be passed in favour of the reversioner without making provision for the maintenance of the defendant. That the defendant is entitled to be maintained out of the estate cannot be denied. The only question that has been raised is whether it would be light to pass a decree in respect of the defendant''s maintenance in this suit. Learned counsel for the plaintiffs-respondents has urged that no decree can be passed in favour of the defendant in this suit and that the only course open to the Court is to leave the defendant to seek her remedy by means of a suit if the reversioner does not pay the amount found by the Court below to be the proper amount of money which she is entitled to get from the estate for her maintenance. Learned counsel for the defendant-appellant has invited my attention to the case in Yellawa v. Bhimangavda, 18 Bom. 452. That case goes the whole length of the appellants'' argument. There also the question as to the maintenance of the defendant was raised for the first time in second appeal. It is true that the learned Judges referred to an earlier decision of their Court and observed that it was the settled practice of that Court not to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property. I see, however, no valid reason why this Court should not follow such a practice.

Now, whatever distinction on matters of detail may exist between the case reported in Dhanraji Kaur v. Ram Raj, A. I. R. 1942 ALL. 135: (199 I. C. 595) and the present case, one thing is certain that the principle underlying the case appears to be that it is in the interests of justice that the defendant should not be forced to file a separate suit for maintenance. With great respect I follow the rule laid in Dhanraji Kaur v. Ram Raj, A. I. R. 1942 ALL. 135 : (199 I. C. 595) and find that the trial Court was in error in deciding the preliminary issue against the defendants.

No evidence has, however, been examined to show the accommodation required for the residence of the defendants and the amount of maintenance to be paid to them. The case must, therefore, be remanded to the trial Court to determine the following issues; (1) How much maintenance are the defendants entitled to ? (2) What portion of the house in dispute would be sufficient for the residence of defendants 1 to 3 ?

On the above finding I allow the appeal, set aside the decree of the trial Court and remit the case to the trial Court for the determination of the issues set out in the preceding paragraph. The trial Court will now examine evidence on the two issues set out above and will then pass a decree in accordance with law.

Considering, however, the circumstances of the case, the parties are left to bear their own costs throughout.

Kapur, J.

I agree.