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Judgment
V. Nath, J.—The defendant 1st set in the suit are the appellants in this appeal against the judgment and decree dated 16th March 2001 passed by Sub-Judge-III, Begusarai in T.S. No. 90 of 1995 by which the part decree for partition has been passed for the properties mentioned in the schedule-V of the plaint which includes the properties in the name of the defendant no. 1 and the property of one medical shop in the name and style Deo Medical Store as mentioned in the said schedule. Sans unnecessary details, the case of the plaintiffs is that the common ancestor Prayag Mahto had three sons namely, Siya Saran Mahto, Chhotan Mahto and Ram Rachhi Mahto out of whom the branch of Chhotan Mahto became extinct. Siya Saran Mahto had three sons namely Madan Mahto, Kapildeo Mahto and Ram Chandra Mahto. Madan Mahto and Kapildeo Mahto are the plaintiff nos. 1 and 2 and their sons and grand sons are the remaining plaintiffs. Ram Chandra Mahto is the defendant no. 1 in the suit and his sons and grand sons are the defendant no. 2 to 15. The defendant nos. 1 to 15 are defendant 1st set in the suit. Ram Rachhi Mahto, another son of Prayag Mahto had three sons namely, Mahendra Mahto, Yogendra Mahto and Ramshekhar Mahto. The descendants of Ram Rachhi Mahto have been impleaded as defendant 3rd set in the suit. Siya Saran Mahto had also a daughter namely Maya Devi and her son and her husband have been impleaded as defendant nos. 16 and 17 (defendant 2nd set). Parmeshwar Mahto who is purchaser of the part of the suit property from the plaintiff no. 1 Madan Mahto has been subsequently impleaded as intervener-defendant.
It is the case of the plaintiffs that after the death of Prayag Mahto, his sons namely Siya Saran Mahto and Ram Rachhi Mahto inherited his property and thereafter they partitioned the same about 58 years ago. In the said partition, the house and homestead land mentioned in schedule-I of the plaint were exclusively allotted to Ram Rachhi Mahto, and the culturable land allotted in the share of Siya Saran Mahto has been mentioned in schedule-II of the plaint. It is further case of the plaintiffs that Siya Saran Mahto and his sons and grand sons are governed by Mitakshara School of Hindu Law and Siya Saran Mahto remained the Karta of his family till his death in the year 1968. The plaintiffs have stated that Siya Saran Mahto acquired 3 katha of land under khata No. 10 plot no. 67 in village Pokhariya out of his own income and the said 3 katha of land have been mentioned in schedule-III of the plaint over which Siya Saran Mahto had constructed his residential house. Thereafter, Siya Saran Mahto out of his own income purchased 6 katha, 8 dhur of land of survey plot nos. 98 and 99 under khata no. 62 of village Mahmadpur by sale deed dated 12.12.1934. It has been stated by the plaintiffs that as the defendant no. 1 was the eldest son of Siya Saran Mahto and was also intelligent and qualified, Siya Saran Mahto acquired the properties mentioned in schedule-IV in the name of the defendant no. 1 and his wife Orhul Devi in between 1954 to 1967 by different sale deeds. It is further case of the plaintiffs that the lands acquired by Siya Saran Mahto in his own name on 12.12.1934 and in the name of defendant no. 1 on 03.11.1956 were acquired by the State of Bihar and the compensation awards were prepared in the name of Siya Saran Mahto and the defendant no. 1. It is the case of the plaintiffs that out of the amount of the compensation, the defendant no. 1 with the consent of Siya Saran Mahto as well as plaintiff nos. 1 and 2 established a medical shop in the name and style Deo Medical Stores in January 1963 and the income from the said medical shop used to be appropriated by the joint family. It is further case of the plaintiffs that after the death of Siya Saran Mahto the defendant no. 1 became karta of the family and had acquired properties out of the joint family fund in his own name and in the name of his wife as mentioned in schedule-IV of the plaint. The plaintiffs have also stated that four other medical shops as mentioned in schedule-V of the plaint have also been established out of the joint family fund. The plaintiffs, therefore, have claimed partition of the suit properties mentioned in detail in schedule-V of the plaint including the five medical shops.
The suit has been mainly contested by the defendant 1st set. The defendant no. 1 has filed his separate written statement. It is the case of the defendant no. 1 that long back in the year 1952 he separated from the joint family and the partition was affected wherein he was allotted one katha of survey plot no. 67 of khata no. 10 with brick tiled room from north and was also allotted 1 katha 3 dhur and 5 dhurki out of 4 katha 4 dhur 10 dhurki of the share of Siya Saran Mahto in survey plot no. 80 of khata no. 62 in village Pokhariya. The defendant no. 1 has further asserted that the family condition of the plaintiffs and the defendants was very precarious due to financial crisis and therefore the defendant no. 1 had started doing private job at the local market since his adolescence stage and by dint of his own labour he acquired education and also the technical degrees in pharmacy and homeopathic medicine. It is the further case of the defendant no. 1 that the father Siya Saran Mahto was only a labourer and he had no income to acquire properties in the name of defendant no. 1 or his wife and further the family had also no property generating sufficient income providing basis for acquisition of further properties. The defendant has claimed that he established Deo Medical Store in the name of his son out of his own personal fund. It has also been asserted by the defendant that his wife Orhul Devi was also doing money lending business having licence for the same and she established the shop by the name and style Deo Medical Agency, and other shops mentioned in schedule-V of the plaint are also not joint family property rather they are the personal properties of the defendants. The defendant no. 1 thus, has claimed that the properties in his name and in the name of his wife Orhul Devi mentioned in schedule-IV and included in schedule-V of the plaint alongwith five medical shops are his exclusive properties and also the exclusive properties of his wife Orhul Devi and their sons and daughter-in-law.
Another contesting written statement has been filed by defendant no. 2 to 6 and they have substantially supported the case pleaded by the defendant no. 1. These defendants have also stated that there had been partition in the family whereby the defendant no. 1 separated after taking his share in the family property. These defendants have further claimed that the firm Om Surgical and J.D. Pharma are the exclusive property of the defendant no. 6 and defendant no. 4 respectively and the firm Bihar Medical Hall was the exclusive property of Indira Devi wife of the defendant no. 3 Krishana Mahto but this firm had been closed in the year 1994 due to deficit.
In view of the rival pleadings of the parties, the learned court below has framed altogether 6 issues out of which issue no. 4 and issue no. 5 have been tried as material issues. The issue no. 4 and issue no. 5 are as follows:-
Issue no. 4:-Is there unity of title and jointness of possession among the parties?
Issue no. 5:-Whether the plaintiffs are entitled for a decree for partition, if so, to what extent?
After hearing the parties, the learned court below has decided the issue no. 4 in favour of the plaintiffs and has held that the defendant no. 1 could not establish his case of previous partition in the year 1952 in the family. While determining the issue no. 5, the learned court below has excluded the properties standing in the name of Orhul Devi wife of defendant no. 1 from partition on the basis of the finding that those are her exclusive properties and has also held that out of the 5 shops, only the Deo Medical Stores is the joint family property. It has further been held that the properties standing in the name of defendant no. 1 are also joint family properties. Accordingly, the plaintiffs have been held to be entitled to a decree for partition of the properties standing in the name of defendant no. 1 Ram Chandra Mahto and also the properties covered under Deo Medical Stores. The suit has, therefore, been decreed in part declaring the plaintiff no. 1, 2, defendant no. 1 and defendant no. 16 to have 1/4th share each together with their heirs in the properties mentioned in schedule-V of the plaint except or excluding the properties held in the name of Orhul Devi and also those covered under Deo Medical Agency, Bihar Medical Stores, Om Surgical and J.D. Pharma.
Assailing the legal preganability of the impugned judgment, Mr. T.N. Maitin, the learned senior counsel for the appellants has submitted that the learned court below has erred in law in granting the decree for partition for the properties mentioned in schedule-V of the plaint including the properties of the defendant no. 1. It has been submitted that there are sufficient evidence to establish the previous partition in the family in the year 1952 but the learned court below has misconstrued and misinterpreted those evidence and wrongly come to the conclusion that the previous partition could not be established. It has been further urged that the defendant no. 1 has purchased the properties out of his own separate income in his name and has also established Deo Medical Stores out of his personal fund and the plaintiffs or the defendant no. 16 could not have a share in the same. It has been canvassed that there is no presumption that the properties acquired by a member of a joint Hindu family in state of jointness would also become joint family property rather the presumption is otherwise that the property standing in the name of a member of the joint family is his separate property and this presumption continues till the plaintiff in a suit for partition pleads and establishes nucleus in the joint family sufficient for acquisition of the said property and it is only then that the burden shifts upon the individual member to establish by evidence the fact of his self acquisition. It has been proponed by the learned senior counsel that there is no averment in the plaint that the joint family of the plaintiffs and the contesting defendants ever possessed substantial properties out of the income and savings of which the properties in question could have been acquired. It has been pointed out that the plaintiffs'' case, in fact, presents a different picture where it has been asserted that the properties have been acquired by the income of the father Siya Saran Mahto in the name of defendant no. 1 and his wife Orhul Devi. It has also been argued that there is no evidence to suggest that the father Siya Saran Mahto had sufficient income and the assertion in this regard by the plaintiffs has remained bald. Criticizing the impugned judgment, it has been further submitted that the learned court below has misconceived and misconstrued the basic principle in this regard and has wrongly placed the burden on the defendant no. 1 to establish his income and to have acquired the properties in his name out of the same. It has also been submitted that the facts as pleaded alongwith the evidence adduced in the case unmistakably suggest that there was no nucleus in the joint family at all which could have been the basis for acquisition of the properties in the name of the defendant no. 1.
Mr. Dronacharya, the learned counsel appearing for the plaintiff-respondents, in reply, has submitted that the joint family of the plaintiffs and defendants have got sufficient property and sufficient income to acquire the properties in schedule-IV of the plaint. It has been urged that the nucleus is there by way of income of the father, income of the plaintiffs alongwith the income from the joint family properties. It has been further submitted that there are sufficient evidence on record to show that the properties in schedule-IV has been acquired by the father in the name of the defendant no. 1 or his wife. It has been canvassed by the learned counsel that the defendant no. 1 has completely failed to establish that there had been previous partition in the year 1952 and he had sufficient income to acquire the properties in his name and therefore the learned court below has committed no illegality in accepting the case of the plaintiffs that the properties standing in the name of the defendant no. 1 are the joint family properties in which the plaintiffs have got their share.
In view of the rival submissions of the parties, the following points emerge for determination in this appeal:-
(i) Whether there is unity of title and possession between the parties or the joint status between them stood disrupted by partition in the year 1952 as claimed by the defendant 1st set?
(ii) Whether the properties in the suit standing in the name of the defendant no. 1 including the shop Deo Medical Stores are his exclusive properties or the joint family properties of the plaintiffs and defendants?
(iii) Whether the judgment and decree for partition of the properties standing in the name of defendant no. 1 are sustainable in law and on facts?
For convenience all the points are taken up together for determination.
At the out set, it would be proper to consider the prayer on behalf of the plaintiff-respondents for amendment in the plaint. After the commencement of the hearing of this appeal on 14.08.2013, I.A. No. 5764 of 2013 has been filed on 19.08.2013 on behalf of the plaintiff-respondent 1st set under Order 6 Rule 17 C.P.C. praying for amendment in the plaint seeking addition of lands with details mentioned in the application, in the schedule of the lands in the plaint and further to amend the relief portion with regard to quantum of share by replacing the digit ''1/4'' by ''5/6''. The learned counsel for the respondents has submitted that the amendments are formal in nature and should be allowed in the interest of justice. However, the learned counsel for the appellants has opposed the prayer for amendment and has submitted that the prayer for amendments has been deliberately made at the belated stage when the hearing of this appeal has commenced. It has been further submitted that the prayer for introduction of properties with details, at this stage, as subject matter of the suit is only for the purpose of delaying the hearing of this appeal because the amendment, if allowed, will require additional written statement and evidence leading to denovo trial of the suit.
From the amendment petition, it transpires that the respondents have given the list of the properties with details in paragraph-6 which are sought to be added as suit properties. But surprisingly enough, all these properties except two plots i.e. plot nos. 92 and 104 have already been mentioned as suit properties with details in schedule-V of the plaint. With regard to the lands of plot nos. 92 and 104 of village Mahamadpur, it has been simultaneously also mentioned in the amendment petition that these properties have been acquired by the State Government for National Highway and Jail. As such, there is absolutely no need for addition of the properties with details in the schedule of the plaint by amendment. This fact pronouncedly reveals that the prayer for amendment in the plaint with regard to addition to lands with details, at this stage, has not been bonafidely made and the statement regarding subsequently getting knowledge of the details of the lands from Halka Karmachari and Circle Office is merely an eye wash. The prayer for amendment for incorporating the lands with details is accordingly rejected. So far as the prayer for amendment in the relief portion of the plaint by deleting the digit ''1/4'' and substituting it by the digit-''5/6'', the same is allowed as there is already statement quantifying the shares of the parties in paragraph-19 of the plaint, and will cause no prejudice to the other side.
Now coming to the merits of the case, there is no dispute between the parties with regard to the genealogy from which it appears that the plaintiff nos. 1 and 2 and defendant no. 1 are the sons of Siya Saran Mahto and defendant no. 16 is the son of the deceased daughter of Siya Saran Mahto. It is also not in dispute that Prayag Mahto had two sons namely Siya Saran Mahto and Ram Rachhi Mahto and both jointly inherited the properties of Prayag Mahto after his death. The descendants of Ram Rachhi Mahto have been impleaded in the suit as defendant 3rd set.
From the perusal of the plaint, it transpires that it contains altogether five schedules and the relief has been sought for partition with regard to the property mentioned in schedule-V. It further transpires that property mentioned in schedule-I has been stated to be the properties allotted in the share of Ram Rachhi Mahto in partition with Siya Saran Mahto and the properties in schedule-II is the property allotted in the share of Siya Saran Mahto. The property mentioned in schedule-III is 3 katha of land of plot no. 67 of khata no. 10 which the plaintiffs have described to be the property taken by Siya Saran Mahto in settlement from the ex-landlord and over which he had constructed his residential house. The properties mentioned in schedule-IV are the properties standing in the name of the defendant no. 1 and his wife Orhul Devi. The properties mentioned in schedule-V are the total properties mentioned in schedule-II, schedule-III and schedule-IV of the plaint besides the five medical shops included therein which have not been mentioned in the earlier schedules.
By the impugned judgment and decree, the learned court below has granted the decree for partition for the properties mentioned in schedule-V of the plaint except the properties standing in the name of Orhul Devi and the properties of the four medical shops namely Deo Medical Agency, Bihar Medical Stores, Om Surgical and J.D. Pharma. The assail in this appeal is to the part of the decree for partition of the properties mentioned in schedule-V of the plaint which also includes the properties standing in the name of the defendant no. 1 as well as one medical shop Deo Medical Stores which the defendant no. 1 has claimed to be his exclusive property established out of his personal fund.
In view of the admitted fact that the plaintiff nos. 1 and 2 and the defendant no. 1 are own brothers being sons of Siya Saran Mahto, the presumption is that they and their descendants are members of an undivided family. The burden of proof to establish the partition lies on the defendant 1st set who have come out with the case of previous partition in the family in the year 1952. However, no direct evidence of partition in the family in the year 1952 has been brought in evidence by the defendant 1st set.
It is the case of the defendant no. 1 that he was married in the year 1942 and his first son was born in the year 1948. It is his further case that when his father intended to remarry, the differences cropped up and he (defendant no. 1) separated from the joint family and there was division of the joint family properties by metes and bounds whereby 1 katha land out of 3 katha of plot no. 67 (mentioned in schedule III of the plaint) and 1 katha 3 dhur 5 dhurki of plot no. 80 out of 4 katha 4 dhur 10 dhurki (mentioned in schedule II of the plaint) had been allotted in his share. In his deposition, the defendant no. 1 has stated that his father did not take any share in plot no. 67 or plot no. 80 and he took his purchased 6 katha 8 dhur land in his share. In order to establish the partition in the year 1952, much reliance has been placed by the learned senior counsel for the appellants on Ext. B/1 which is the sale deed executed by the plaintiff no. 1 Madan Mahto on 27.05.1983, Ext. B/5 which is the sale deed executed by Mahendra Mahto on 13.03.1982, Ext. C which is gift deed executed by Radha Devi on 15.03.1985 as well as the award exclusively prepared in the name of the defendant no. 1. The sale deed (Ext. B/1) executed by the plaintiff no. 1 Madan Mahto is with regard to 1 katha 8 dhur 3 1/4 dhurki land of plot no. 80 of khata no. 62 which has been mentioned in schedule-II of the plaint and described as the property allotted in the share of father Siya Saran Mahto in partition with his brother Ram Rachhi Mahto. In the description portion of the property, subject matter of this sale deed, it has been mentioned that on the eastern side lies the share of Ram Chandra Mahto (defendant no. 1), and in the recital portion it has been stated:-
These averments in the sale deed are admission by the plaintiff no. 1 of the fact of previous partition claimed by the defendant no. 1. The plaintiff no. 1 Madan Mahto has not examined himself in the suit and there is no explanation on his behalf of the above facts stated in this registered sale deed (Ext. B/1) executed by him in favour of Parmeshwar Mahto, and even the plaintiff no. 2 Kapil Deo Mahto who has been examined as P.W.-16 in the suit, has failed to explain away these facts, and to the contrary he has accepted the execution of the sale deed and possession of the purchaser Parmeshwar Mahto over the sold property by stating in paragraph 57 of his deposition that:-
It is well settled that admission by a party is a substantive evidence in view of Sections 17 and 21 of the Evidence Act and it is the best piece of evidence against the person making the same. The facets of this principle has been explained by the Apex Court in the case of Divisional Manager, United India Insurance Co. Ltd. and Another Vs. Samir Chandra Chaudhary, as follows:-
....Admission is the best piece of evidence against the persons making admission. As was observed by this court in Avadh Kishore Das Vs. Ram Gopal and Others, in the backdrop of Section 21 of the Indian Evidence Act 1872 (in short the (Evidence Act'') it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong they are efficacious proof of the facts admitted.
Tested on the anvil of the aforesaid principle, there remains no doubt that the recitals in the sale deed (Ext. B/1) coupled with the statement of the plaintiff no. 2 in his deposition accepting the execution of the sale deed and possession of the purchaser on the sold property by constructing his house thereupon are efficacious proof of the fact of the earlier partition as pleaded by the defendant 1st set. These statements by the plaintiff no. 1 in the sale deed and by the plaintiff no. 2 in his deposition are in no way compatible with the case of jointness over the suit properties as propounded by them rather they support the case of the defendant 1st set of partition as pleaded. The trial court, though, has taken into notice the sale deed (Ext. B/1) and the recitals therein but has failed to consider their effect and has also ignored the deposition of the plaintiff no. 2 as P.W. 16 in that regard.
In the sale deed (Ext. B/5) as well as the sale deed (Ext. C) for part of land of plot no. 80 executed by Mahendra Mahto and Radha Devi who are admittedly the separated co-sharers of the parties to the suit, the specific names of the defendant no. 1 and the plaintiff no. 2, having lands in the boundaries, have been mentioned. These facts also corroborate the recital regarding partition made in the sale deed (Ext. B/1). Further Ext. E to E/9 are the rent receipts exclusively in the name of the defendant no. 1. No rent receipt in the joint names of three brothers has been brought in evidence by the plaintiffs. The notices (Exts. F, F/1 and F/2) issued in the land acquisition proceeding also show that the awards were prepared in the separate names of Ram Chandra Mahto (defendant no. 1) and Siya Saran Mahto. Viewed in the light of the admissions by the plaintiffs as discussed earlier, these evidence also lead to the inference of separate status of the parties to the suit.
The sale deeds (Ext. B/10, B/11, B/13, B/14, B/15) which have been relied upon by the trial court to disbelieve the defendants'' case of previous partition, however depict entirely contrary facts. These sale deeds are in the name of defendant no. 1 or his wife Orhul Devi. In the boundaries of the lands sold through these sale deeds, not only the name of Siya Saran Mahto has been mentioned in one of the boundaries but simultaneously the name of Ram Chandara Mahto (defendant no. 1) has been mentioned in another boundary. In sale deed (Ext. B/10) dated 21.09.1959, through which Ram Chandra Mahto has purchased lands of plot no. 66, the eastern boundary of the sold land shows the land of the father of the purchaser and the western boundary shows the land of the purchaser; in sale deed (Ext. B/11) dated 15.11.1962 in the name of Orhul Devi for the lands of plot no. 67, the name of Siya Saran Mahto having house and ''Bari'' has been mentioned in southern and western boundaries and the name of Ram Chandra Mahto has been mentioned in northern boundary; in sale deed (Ext. B/13) dated 02.02.1967 in the name of Orhul Devi, the names of Siya Saran Mahto and the purchaser have been mentioned in the northern and western boundary respectively; in sale deed (Ext. B/14) dated 16.07.1963 in the name of Orhul Devi, the name of Siya Saran Mahto has been mentioned in northern boundary but the western boundary shows the lands of the husband of the purchaser and similar is the position in the sale deed (Ext. B/15) dated 16.07.1963 in the name of Orhul Devi. The mention of the names of Siya Saran Mahto and Ram Chandra Mahto simultaneously in two boundaries in all these sale deeds is suggestive of their separate status and is in consonance with the case of the contesting defendants'' case of previous partition and holding their allotted shares separately. The trial court while dealing with these sale deeds, has ignored this fact and has wrongly highlighted only the mention of the name of Siya Saran Mahto in one of the boundaries of the lands sold by these sale deeds. Even though it is the case of the contesting defendants that Siya Saran Mahto did not take share in plot no. 67 in partition but the fact that Siya Saran Mahto as father of the plaintiffs was their guardian in the year 1952 and could have been in possession of their allotted shares as such cannot be overlooked when according to the own case of the plaintiffs they were minor in the year 1952. Therefore the mention of the name of Siya Saran Mahto in the boundaries of these sale deeds as having land in plot no. 67 has been unduly over emphasized by the learned court below.
The contesting defendants have also led oral evidence to establish their case of earlier partition. D.W. 2 Mahendra Mahto is son of Ram Rachhi Mahto who was the separated brother of Siya Saran Mahto, and thus a competent witness. He has stated that the three brothers (the plaintiff nos. 1, 2 and the defendant no. 1) separated in the year 1952 and the partition was done in his presence. He has also deposed that there had been partition between his father and Siya Saran Mahto wherein the 15 dhur land was entirely allotted to the share of his father and Siya Saran Mahto did not get any share in the same. This statement made in paragraph 2 of the deposition by this witness with regard to partition between Siya Saran Mahto and Ram Rachhi Mahto has been wrongly interpreted by the trial court as the statement with regard to the partition between the plaintiffs and the defendant no. 1 and fault therefore has been found therein in view of the defendants'' case that Siya Saran Mahto took 6 katha 8 dhur land in his share in partition in the year 1952. The trial court, thus, has committed illegality in discarding the testimony of the D.W. 2 with regard to the partition between three brothers in 1952 on this ground. The D.W. 4 Bachha Paswan has also deposed that the partition in the year 1952 was done in his presence. He has further deposed that the partition was done orally and no paper was prepared. The trial court has discarded the testimony of this witness on the basis of the statement made by the D.W. 1 (defendant no. 1) in paragraph 26 of his deposition wherein he has stated that the lands were measured by his father and the measurement was noted by the panch Jang Bahadur Prasad. But the trial court, however, has ignored the remaining part of the statement made in the said paragraph 26 that no paper was prepared relating to the calculation, and has wrongly found inconsistency between the statement of D.W. 1 and D.W. 4. The D.W. 3 Dinesh Paswan is guard of crops in the suit land in village Panhas and has deposed that Ram Chandra Mahto (defendant no. 1) is in possession of the lands and he pays the remuneration to him. The D.W. 6 Surya Narayan Singh has deposed that the three brothers namely Ram Chandra Mahto, Kapildeo Mahto and Madan Mahto are separate since 40-50 years. He has further deposed that Ram Chandra Mahto has let out his house to his brother on monthly rent of Rs. 200/-. He has also deposed that the agreement to tenancy was done in his presence and the rent for two months was paid in his presence. The trial court has disbelieved the testimony of this witness on his failure to give minute details regarding the area, the number of rooms and the exact date and month of the creation of tenancy but these grounds are not sufficient to discard this witness when his deposition is considered in entirety. The D.W. 7 Fulena Prasad Singh is the person in whose family Siya Saran Mahto was employed as bullock cart driver. This witness has also deposed that the three brothers are separate. He has also deposed that Ram Chandra Mahto has constructed a new house in mohall-Pokharia. Similar statements supporting the partition have been made by the remaining witnesses of the defendants.
On the other hand, the witnesses examined on behalf of the plaintiffs have made statements which in fact support the case of the contesting defendants. The P.W. 9 Fulo Sao has deposed
The plaintiff no. 2 Kapildeo Mahto as P.W. 16 has also deposed. . As discussed earlier, this witness has also accepted the sale made by his brother Madan Mahto of his share in the family property and has further accepted the possession of the purchaser having a house thereupon.
The cumulative effect of the scrutiny of the documentary and oral evidence of the parties thus leads to the inevitable conclusion that the contesting defendants have succeeded in establishing their case of previous partition of the family property in the year 1952. The learned court below has failed to analyze the evidence in proper perspective and its conclusion that there is unity of title and possession between the parties with regard to the suit properties is erroneous and deserves to be overturned.
After accepting the case of the contesting defendants regarding previous partition in the year 1952, their further case regarding self acquisition of the properties by the defendant no. 1, although, loses its relevance but in view of the finding by the learned court below in this regard and the exhaustive submissions made by the learned counsel for the parties on this point, it is apt to consider its merits also on the assumption that the parties are still joint. The plaintiffs have come out with the case that the properties acquired in the name of defendant no. 1 are in fact joint family acquisition and therefore the plaintiffs are entitled to have their shares in the same. On the other hand, the defendant no. 1 has claimed that there had been partition in the family in the year 1952 whereby the defendant no. 1 separated and the properties standing in his name as mentioned in schedule-IV and included in schedule-V and the shop Deo Medical Stores mentioned in schedule-V are his self acquisitions and not the joint family properties. It would be pertinent to mention here that the there is no statement in the plaint that there existed sufficient joint family property out of the income and saving of which the properties were acquired in the name of the defendant no. 1 or his wife. The assertion by the plaintiffs in the plaint, in substance, is that their father Siya Saran Mahto was a laborious man and out of his own income he acquired the properties in the name of his eldest son (defendant no. 1) and his daughter Orhul Devi. It has been averred that Siya Saran Mahto acquired the properties in the name of the defendant no. 1 or his wife Orhul Devi from the year 1954 to 1967 and after the death of Siya Saran Mahto, the defendant no. 1 as karta acquired the properties in his own name and in the name of his wife out of the joint family fund. However, from the other averments made in the plaint, it becomes manifest that Siya Saran Mahto had got 4 katha 4 dhur 10 dhurki agricultural land (as mentioned in schedule-II) in his share after partition with his brother Ram Rachhi Mahto and had further acquired 3 katha homestead land (as mentioned in schedule-III) by way of settlement on which he constructed his residential house. There is no description in the plaint with regard to any other property in the family except 6 katha 8 dhur of land earlier purchased by Siya Saran Mahto but subsequently acquired by the State of Bihar. Thus, it is discernible that the joint family of Siya Saran Mahto had only 4 katha 4 dhur and 10 dhurki of agricultural land besides 3 katha of homestead land on which his house stood. There is however no pleading or evidence with regard to the yield of this agricultural land and there is also no pleading or evidence aliunde to show the quantum of income of Siya Saran Mahto or the income of the joint family from any other source which would have been sufficient for raising the presumption of acquisition of the properties mentioned in schedule-IV of the plaint by the joint family in the name of the defendant no. 1 or establishment of the medical shop Deo Medical Store. To the contrary, the plaintiff no. 2 Kapildeo Mahto in his deposition as P.W. 16, in paragraph-6, has accepted that his father Siya Saran Mahto was a bullock cart driver. Similar is the statement by the P.W. 13 who has stated in paragraphs-3 and 4 of his deposition that Siya Saran Mahto was a labourer on a bullock cart and used to carry bricks from brick kilns and get 4-8 anna per trip. The plaintiff no. 1 Madan Mahto, who is elder to the plaintiff no. 2 Kapildeo Mahto and a competent person acquainted with the affairs of the family, has not chosen to depose in the suit and there is also no cogent explanation for his non-examination in the suit. The plaintiff no. 2, as P.W. 16, has further accepted in cross examination in paragraph 51 that he has no evidence to establish that Siya Saran Mahto had purchased lands in the name of defendant no. 1 Ramchandra Mahto. These facts show the dismal failure of the plaintiffs to plead and establish existence of adequate nucleus in the family for acquisition of the properties in the suit in the name of the defendant no. 1.
Admittedly, the sale deeds of the properties in question stand in the name of defendant no. 1 and the shop Deo Medical Store has also been admittedly established by the defendant no. 1 albeit out of joint family fund according to the plaintiffs. The presumption therefore would be that those properties are his exclusive properties. The principle in this regard has been succinctly laid down by the Apex Court in the case of Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, where their lordships have approvingly noticed the law laid down by the Privy council in AIR 1954 P.C. 189 as follows:-
....The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of properties was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the properties was acquired without the aid of the joint family property.....
Their lordships have further also laid down as follows:-
....Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even through it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produced substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact, to be determined on the evidence in the case
Similar view has been spelt out by the Apex Court in the later decisions in the case of Mst. Rukhmabai Vs. Lala Laxminarayan and Others, and in the case of Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh, It would be also pertinent to take into notice a decision of this Court, almost on similar facts, in the case of Chandar Sah and Others Vs. Mst. Godhani and Others, where it has been held as follows:-
....But, it is equally well settled that there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any property or item of the property is joint family property, the burden of proving that it is so rests on the party asserting the same....To render the property joint, plaintiffs must prove that the family was possessed of some property which formed sufficient nucleus with the income of which the property could have been acquired....
It has been further held:-
The initial burden of proving that the joint family was possessed of sufficient income or property which could form the nucleus for the acquisition by joint family in the name of Yugal Sah not having been discharged by any evidence aliunde, there could be no presumption that the plaintiffs had any interest in the property acquired by Yugal Sah although during the lifetime of the father Bhola Sah especially when Bhola Sah himself was possessed of no means for such acquisition for and on behalf of the joint family.
In the present case, as noticed earlier, there is no pleading or evidence to show that the joint family possessed sufficient property or fund which could have formed the nucleus for acquisition of the property in the name of the defendant no. 1 and thus the plaintiffs have clearly failed to discharge their initial burden in this regard. The trial court after recording the finding that there was no partition in the family in the year 1952, has proceeded in paragraph-24 of the judgment to consider the question whether the properties in the name of the defendant no. 1 and the shop in the name and style Deo Medical Store are the joint family properties or the exclusive properties of the defendant no. 1. But while determining this question, the trial court, under misconceived notion of the principle of law, has proceeded to evaluate evidence regarding the separate sufficient income of the defendant no. 1 enabling him to acquire the properties in his name and to establish the shop Deo Medical Store. After finding that the defendant no. 1 has failed to establish the availability of sufficient fund with him to acquire the properties in his name, the conclusion has been drawn that those properties are joint family properties in which the plaintiffs and the defendant no. 16 have got shares.
The cleavage on the principles of law, as created by the learned court below, cannot withstand scrutiny in view of the authoritative pronouncement in this regard by the Apex Court in the case of AIR 2003 3800 (SC) as follows:-
....In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No. 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No. 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents claim of Item No. 1 to be joint family property would fall as rightly held by the first appellate court...
(Emphasis supplied)
The learned court below, therefore, has definitely erred in recording the finding that the properties of the defendant no. 1 are the joint family properties on the only basis that the defendant no. 1 has failed to establish his financial capability to acquire those properties. The evidence led by the defendant no. 1 or even the absence of evidence by him to establish his separate sufficient income in this regard would be of no consequence in view of the failure of the plaintiffs to discharge the initial burden of proving the existence of nucleus in the family sufficient for acquisition of the properties which have been claimed by the defendant no. 1 to be his self acquisitions.
The contention, on behalf of the appellants, at this juncture, has been that the admitted possession of the plaintiffs over the lands of plot no. 52 and 53 which are also in the name of the defendant no. 1, is sufficient to dent the case of the defendant no. 1 to have exclusive title over the same. Although, the defendant no. 1 in his written statement has pleaded to have orally sold those lands to the plaintiffs but even otherwise also, in absence of a clear case by the plaintiffs of blending of his separate property by the defendant no. 1 to the joint family property, no right can be recognized in favour of the plaintiffs simply by being in possession. Mere fact that the plaintiffs have been allowed by the defendant no. 1 to come in possession of his separate property, by sale or otherwise, will not change the nature of the property from being separate property of defendant no. 1 to the joint family property. Thus the finding by the learned court below that the properties in the name of the defendant no. 1 are the joint family properties is also held to be not sustainable.
After the conclusion of the hearing of this appeal, the learned counsel for the respondent 1st set has submitted that a cross objection has been filed on that day i.e. 22.08.2013 on behalf of the respondent nos. 5, 6 and 7 assailing the part of the decree excluding the properties standing in the name of Orhul Devi from partition. It has been further pointed out that the I.A. No. 5948 of 2013 has also been filed u/s 5 of the Limitation Act for condonation of delay in filing the cross objection and the prayer has been made to condone the delay and dispose of the cross objection on merits. The learned senior counsel for the appellants, however, has opposed the prayer by submitting that the cross objection is hopelessly barred by limitation and has been filed purposely at the fag end of the hearing of the appeal to avoid the decision on merits and prolong the disposal of this appeal. Both sides have been, therefore, heard on the point of condonation of delay in filing the cross objection.
In support of the prayer for condonation of delay, it has been submitted by the learned counsel for the respondent 1st set that there has been no deliberate laches on the part of the respondent nos. 5, 6 and 7 in filing the cross objection as they have been declared as major and permitted to defend their interest as such only after the order dated 16.04.2013 in this appeal. It has been further submitted that these respondents, then, after the scrutiny of the relevant documents and on legal advice have filed the cross objection.
The learned counsel for the appellants has opposed the prayer for condonation of delay and has submitted that the explanation for delay has no substance and is not supported by the materials on record. It has been urged that the respondent nos. 5, 6 and 7 have attained majority long back and have all the opportunity to prefer cross objection but they have preferred to file the same deliberately at this stage when the hearing has been concluded in order to avoid judgment being passed.
From the records, it transpires that the I.A. No. 2625 of 2012 had been filed on 09.04.2012 on behalf of the respondent nos. 5, 6 and 7 praying to accept them as major respondents and permit them to pursue the appeal as such. However, in this interlocutory application, it had been stated in paragraph-4 that the respondent nos. 5 and 6 became major in the year 2006 and the respondent no. 7 become major in the year 2008. Obviously, this interlocutory application was filed in the year 2012 by the respondent nos. 5, 6 and 7 much after the attainment of majority. From the records, it further appears that the respondent nos. 5, 6 and 7 have already appeared in this appeal by filing their Vakalatnama on 07.02.2007 as major respondents alongwith the respondent nos. 1, 2, 4 and 10. These facts are totally incompatible with the explanation furnished by the respondent nos. 5, 6 and 7 for the condonation of delay that they became able to scrutinize the documents and seek legal advice to file cross objection only after the order dated 16.04.2013. There was nothing to prevent them from filing cross objection or to take appropriate steps to protect their interest after they appeared in this appeal on 07.02.2007 as major respondents.
It would be condign here to take into notice the observation by a three Judge Bench of the Apex Court in the case of Municipal Corporation of Delhi and Others Vs. Intnl. Security and Intelligence Agency Ltd., as follows:-
....It has to be remembered that law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross objector ought to have filed appeal within the prescribed period of limitation calculated from the date of the order if he wished to do so. Having allowed that opportunity to lapse he gets another extended period of limitation considering from the date of service of the notice of the appeal enabling him putting in issue for consideration of the appellate court the same grounds which he could have otherwise done by way of filing an appeal...
The respondent nos. 5, 6 and 7 have chosen to file the cross objection on the day when the hearing of the appeal was to conclude and the mater was to be posted for judgment. It may be pertinent also to record that the learned counsel for the respondent 1st set (including the respondent nos. 5, 6 and 7) has not informed the court during the course of his argument regarding the proposed filing of the cross objection even when it has been specifically submitted, at the out set, by the learned senior counsel for the appellants that the part dismissal of the suit for the properties in the name of Orhul Devi has not been challenged by the plaintiff-respondents. These facts clearly lead to the inference that the filing of the cross objection, at this stage, is only a ploy to avoid the judgment in this appeal. It is therefore held that the respondent nos. 5, 6 and 7 have failed to establish sufficient cause for condonation of delay in filing the cross objection. The interlocutory application (I.A. No. 5948 of 2013 is accordingly dismissed and the cross objection is held to be barred by limitation. For the aforesaid premised reasons and the findings, this appeal is allowed and the impugned judgment and decree for partition are set aside. The suit is accordingly dismissed. The cross objection filed by the respondent nos. 5, 6 and 7 is also dismissed as barred by limitation. In the facts and circumstances of the case, however, there shall be no order as to costs.