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Judgment
K.N. Saikia, J.—This Defendants'' second appeal from the judgment and decree of the Assistant District Judge, Goalpara reversing those of the Munsiff has been admitted on the questions of law as to whether the finding of the lower appellate Court that the suit land is a joint Hindu family property, is erroneous being arrived at by placing the burden of proof wrongly on the Defendants, by relying on Ext. 3 which is not admissible, and by misconstruing paragraphs 8 and 10 of the written statement into an admission by the Defendants.
The Plaintiffs'' suit for declaration of their right and title over the suit land, confirmation of possession thereof, and for correction of khatian No. 266 by adding their names therein along with the heirs of Brajanath Paul and Horibala Paul, by right of inheritance has been resisted by the Defendants stating that the suit land was never acquired by Brajanath as karta of the Joint Hindu Family but as personal property and as such it was not a joint family property and was not inherited by the Plaintiffs.
The trial Court on the pleadings framed five issues, the second and the third being, whether the Plaintiffs are co-sharers with the Defendants in respect of the suit land, and whether they had right, title, interest and possession over it; and it has decided these issues against the Plaintiffs and dismissed the suit. The learned lower appellate Court has reversed those findings, allowed the appeal and decreed the suit holding that the Plaintiffs are entitled to share in the ''A'' schedule property and that they are in possession of the ''B'' schedule property which is the suit land, and are also entitled to have their names included in the khatian No. 266, Dag No. 371 along with those of the Defendants; and accordingly this possession also has been confirmed. Hence this second appeal on the above questions of law.
The first point to be examined in this second appeal is whether the finding that the suit land is a joint family property is one of factor of law or mixed question of law and fact. It is settled law, as ruled in Smt. Krishnawati v. Shri Hans Raj AIR 1914 S.C. 280 that in the determination of a question of fact no application of any principle of law is required In finding either the basic facts or arriving at the ultimate conclusion, while in a mixed question of law and fact the ultimate conclusion has to be drawn by applying the principles of law to the basic findings. The fact that the suit land was purchased by Brajanath Paul is a fact. However, whether he purchased it as the karta of the of joint Hindu family with others or as a separate property of himself has to be decided by applying certain accepted principles of law like, ancestral nucleus, separate income, subsequent user etc. which may make the finding one of mixed law and fact. I accordingly hold that under the facts and circumstances of the case this finding is one of mixed law and fact, particularly because of the nature of the purchase, mutation in the Touzi, execution of the deed in joint names and partition.
If the above finding was arrived at by placing the burden of proof wrongly on the Defendants, it would amount to defect in procedure and that would amount to a substantial question of law as was held in Sikharchand v. Digambar (1974) 1 SCWR 327. In the instant case the Plaintiffs claimed to have purchased from Hamida Khatun; the trial Court found that the sale deed (Ext. Ka) dated 18.11.26 was executed by Jonab Ali, Kudratullah and Golam Ali Sekh jointly in favour of Brajanath Pal, Giridhar Pal and Purna Pal selling about 2 bighas of land. D.W. 1 Golam Ali himself proved Ext. Ka. The Plaintiff No. 1 as P.W. 5 admitted the suit land to have originally belonged to Golam Ali P.W. 4 supported P.W. 5, P.W.1, Deben Rai, proved a touji, Ext. 1, wherein the Jotedar is shown as one Mstt. Hamida Khatun. P.W. 2 supported him, However, the trial Court observed that Jotedar Hamida Khatun''s land had no connection with the land of Golam Ali Which was told by Ext. Ka and that the name of Krishna Ch. Pal, through whom the Plaintiffs claimed, having not been there in Ext. Ka the Plaintiffs could not have any title to the land purchased thereby. The Court further observed that there was no evidence to show that Brajanath Pal, Krishna Ch. Pal and Haribola Paul lived in the same family with common mess and there was no evidence to show when the two brothers, Brajanath and Krishna Chandra, separated and the presumption was that, they separated before the purchase of the suit land, by Ext. Ka. So the Plaintiffs were not co-sharers with the Defendants in respect of the suit land.
The learned lower appellate Court found that Ext. ''Ka'' disclosed that the vendors Jonah Ali, Kudratullah and Golam Ali held the said land under Jotedar Khan Saheb Abdul Latif Mia and D.W. 1 Golam Ali admitted in cross examination that Hamida Khatun was the wife of Khan Bahadur and therefore it could not be said that the land of Schedule ''A'' and that of Ext. ''Ka'' were not the same. Besides, it found, that the Touzi proved by P.W. 1, Deben Roy showed the names of Brajanath Paul, Haribola Pal, Rajkumar Pal and Suresh Paul, Rajkumar Paul was son of Krishna Chandra Paul. Ext. 2 was a rent receipt of the same land granted by P.W. 2. The court also believed Ext. 3, which according to it constituted an admission by the Defendants Kamini Pal and Sachin Pal that the suit laid at the relevant time had been in possession of the Plaintiffs Rajkumar Pat and Gopal Pal. The court, therefore, held on the basis of Ext. ''Ka'' together with the evidence of D.W. 1 when be stated that Brajanath and Krishna Chandra were members of a joint family, and the Touzi that Brajanath Pal and Krishna Chandra were members of a joint family, joint in mess and property and the family purchased by Ext. Ka and the names of the three branches were mutated in the Touzi and the Plaintiffs were in possession and that only after 1974 they found that their names were omitted, but of all other co-sharers were mutated. It has accordingly been held that the Plaintiffs are entitled to share in the schedule property and the suit has been decree. These findings as to joint family and mutation, finding of facts.
In the above discussion of the courts below there does not appear to lie my wrong placing of the burden of proof. Admittedly the parties are governed by the Dayabhaga and not the Mitakshara. The Dayabhaga does not recognise survivorship us the mode of devolution of joint family property. It does not also recognise the doctrine of aggregate ownership but accepts "fractional ownership" in such property. A joint family is a body consisting of persons, male or female, who are the sapindas (trelation) of each other by birth, marriage, or adoption. A Dayabhaga coparcenary is a body consisting of persons who inherit the property of a male Hindu as his male issue and the heirs, male or female, of such co-heirs. Under the Dayabhaga, a coparcenary may form itself for the first time on the death of an owner of property having two or more of his male issues as co-beirs. It cannot commence with females, No coparcenary can commence during the lifetime of the owner since no coparcenary can exist even between him and his male issue. The male issue does not acquire by birth any interest in the property of their ancestor while he is still alive even if such ancestor is himself the owner of ancestral property, that is, property coming to or devolving on him by inheritance from his own father, grandfather, or great-grandfather. Under the Dayabhaga, whether the property is ancestral or separate, a coparcenary can be formed only on the death of the owner and never during his lifetime and there can be no coparcenary between a person and his descendants at all. "According to the Dayabhaga law," says Mulla, "the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father''s death. On the death of the father they take such of the property as is left by him, whether separate or ancestral, as heirs and not by survivorship."
In the instant case Brajanath and Krishnachandra, both being sons of Sibanath, the property purchased by Ext. ''Ka'' could be coparcenary property or could be their joint property if they jointly purchased. The mutation of name of the. Plaintiffs'' father, Rajkumar in the Tousi, which was proved by the Plaintiffs, could be a circumstance for consideration in proof of joint purchase,
In Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, relying in AIR 1947 P.C. 189, it has been held that 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 property was joint to establish the fact. But where it is established that the family possessed some joint property 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 property was acquired without the aid of joint family property. This was followed in K.V. Narayanaswami Iyer Vs. K.V. Ramakrishna Iyer and Others, and in Mudigowdo v. Ramchandra AIR l969 S.C. The above rullings are more appropriate to Mitakeshara than to Dayabhaga. In the instant case the Plaintiff claimed 1/3rd share only in the Ext. ''Ka'' land and claimed to have been in possession of that share. P.W. 2, Priyanath Sikdar, who was an employee of Jotedar Hamida Khatun stated to have amicably partitioned the property in three shares. This was corroborated by the Ext. 1 where the heads of each of the branches were mutated; but only after 1974 the Plaintiffs names were omitted. Under the circumstances the question of a nucleus from which the suit land could have been acquired would not directly be in issue. The finding is to possession is one of fact. So also is the finding as to the mutation of Rajkumar''s name in the Touzi, The proof of existence of joint family nucleus is antecedent while the proof by user and mutation is subsequent to the purchase. Since every coparcener under the Dayabhaga taken a defined share of the coparcenery property, the mutation of Raj Kumar''s name in the Touzi along with the heirs of Brajanath is significant. Under the Dayabhaga every adult coparcener has the right to call for a partition of the coparcenery property. The amicable partition of the Ext. ''Ka'' property into three shares for three branches is therefore significant. Mr. Sarma submits that property purchased by a member, of a Hindu joint Dayabhaga family is presumed to be personal property and those was claim it to be joint property have the burden to prove it and that the learned lower appellate Court accepted the property to be joint without placing the burden on the Plaintiffs to prove it. There is no doubt that the presumption of law that while a Hindu family remains joint, all property including acquisition made, in joint property, does not apply to a joint family governed by the Dayabhaga, When property is acquired by a member of a Dayabhaga Joint family it is presumed to be his separate property and the burden is on him who asserts it to be joint family property. In the instant case the ''A'' schedule property purchased by Ext. ''Ka'' in the names of Brajanath, Giridhar and Haribola would therefore, be presumed to be the purchasers'' separate property and the burden is for the Plaintiffs to show that it constituted joint family property, The Plaintiffs have tried to prove it by Ext. 1, the Touzi, the Ext. 2 the revenue paying receipt, and the Ext. 3, apart from the oral evidence of their witness D.W. 1 Golam All supported the statement into joint family. Whether those were admissibly or if to whether they would support the conclusion of fact or not are, of course, different matters. It cannot therefore, be said that the decision hat been arrived at by wrongly placing the burden of proof on the Defendants, The submission has, therefore, to be rejected.
The next submission is that the Ext. 3 is not admissible, Ext. 3 is a document giving consent to mutation and was proved by P.W. 5 who was the person in whose favour the consent was given. It is purported to have been written for (1) Kamini Pal, (2) Sachin Pal (3) Udhab Pal, (4) Suhal Pal, (5) Balai Pal, all sons of Brajanath Pal, but was actually signed on revenue stamps by only Sachindra Pal and Kamini Charan Pal on 5.7.74 in favour of Shri. Raj Kumar Pal and Shri Gopal Pal, the instant Plaintiffs. It is in respect of Khatian No. 266, Dag No. 375 land measuring 2B. 4K. 14 Lessas. It states that by mistake at the time of settlement their father Brajanath''s name was recorded in it, but by right of inheritence Shri Raj Kumar Pal and Shri Golap were cultivating and possessing the land and the writers bad, therefore, no objection to their names being added with those of the writers. Mr. Sarma submits that this document Was compulsorily registrable as it amounted to conveyance of property. This submission is not tenable as there was no transfer of property involved, Simple correction of a khatian by adding the names of persons who are in possession of the land covered by the Khatian does not involve any transfer of property''. The document, therefore, cannot be held to be inadmissible on this ground. Relying on Kale and Others Vs. Deputy Director of Consolidation and Others, Mr. Sen submits that this document was in the nature of a family arrangemeat which could be even oral and when reduced to writing it by itself did not create or extinguish any rights in the immoveable property, The submission is tenable. Mr. Santa next contends that the document was not proved according to law as the scribe was not examined and P.W. 5 himself could not read it. But the fact remains that the signatures could not be denied. The submission that even if it amounted to admission it would bind only the two executants, namely Sachin and Kamini, does not relate to admissibility but to its effect. The Ext. 3 therefore could not beheld to be inadmissible, the nature and extent of its evidence and its evidentiary value are, of course, different matters. The submission is accordingly rejected.
Mr. Sarma has not made any submission on the question of misconstruction of paragraphs 8 and 10 of the written statement and no discussion is necessary on that question
In the result, this appeal is found to be without merit and hence it is dismissed without any order is to costs.
Appeal dismissed.