Smt. Brij Kaur vs Smt. Vinod Kinno

G.S.N. Tripathi, J.—This is defendant''s appeal against the concurrent findings of both the Courts below holding that the appellant has absolutely no case.

Section 100 of the CPC runs as follows:-

Second Appeal. -(1) save as otherwise expressly provided on the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

This portion was brought in the statute book by Act No. 104 of 1976, Section 37, w.e.f., 1.2.1979. The present appeal was filed on 23.1.1978 when the aforesaid amendment had already come into existence in the statute book. Therefore, that provision is very much applicable to the present appeal.

Even the learned Counsel when asked as to what is the question of law involved in this case, he simply said that the burden of proof has been wrongly shifted to the defendant. Therefore, this shall not be affected by the aforesaid amendment in the CPC. For that purpose the entire record has been read over to me. I find that there is absolutely no misdirection on the part of the lower Court in shifting the burden upon the defendants in the present case.

There is a presumption on jointness of Hindu family, no doubt, but there is absolutely no presumption that joint family has a joint property. When a particular person says that the property is joint, he has to prove it by the evidence required for that. An agricultural property was already in the name of Sri Lal Singh the father of Dilawar Singh and father-in-law of the plaintiff. The defendant''s husband Sri Dilawar Singh has been produced as DW-1 in this case. He wanted to say that his father Lal Singh had an ancestral property and form that nucleus the disputed house was constructed half by the joint Hindu family and half by his wife. Therefore, the entire family has become owner of the same ipso facto. In the cross-examination, he was asked as to how did he know that there was any joint property in the name of Sri Lal Singh. For that, he gave a statement at page 3 in the cross-examination that I have seen the papers, which indicate that the property in the name of my father, is ancestral. I had seen those papers in the Tehsil. I obtained the copies thereof. They are lying at my house. But they have not been filed at all. The law is that when in a matter documents are available oral evidence is excluded. Section 19 of the Evidence Act comes into play. Therefore, this evidence of Dilawar Singh, is not worth the paper even, upon which it has been unfortunately recorded, therefore, the defendant has not been able to prove that there was any joint property in his family, standing in the name of Sri Lal Singh and with the help of which, he had purchased that property. Rather Lal Singh has given his sworn testimony that there was no ancestral or joint family property with him, so the theory of nucleus becomes false and unreliable in this case.

Sri Lal Singh has been examined as PW-1. He has clearly stated that there is no ancestral property in his name. Whatever property stands in his name, is his personal property. He got a fresh settlement from the Zamindar in his name. Thus he became the sole owner of the same. Admittedly, the property stands in the name of Sri Lal Singh. Therefore, in order to get this property from Sri Lal Singh, the defendant had to prove that it was purchased from the joint Hindu family fund and for the use of joint Hindu family. Unless these two pre-requisites are proved on the record, the burden does not shift from defendant and its benefit never accrues nor could it accrue in favour of the defendant. Therefore, this argument that the burden has been wrongly shifted upon the defendant, is not sustainable.

After a careful perusal of the entire evidence, I find that there is no substantial question of law involved in this appeal. Both the Courts below have given a concurrent finding of fact against the defendants. These are findings on question of law too. The law is that even if the findings of the lower Court are wrong, they may not be challenged in the Second Appeal, unless that attracts and involves substantial question of law. Mere statement that the burden has been wrongly shifted does not prove the same.

The appeal has no force. It is accordingly dismissed with cost.