IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.56 of 2003 1. Ahilya Devi wife of Santosh Kumar Mandal. 2. Santosh Kumar Mandal son of Narain Mandal. Both resident of Mohalla Naya Gaon Thakurbari Road, P. S. East Colony, Jamalpur, District Munger. ….Plaintiffs-Appellants-Appellants. Versus 1. Ashok Kumar Chourasia son of Gaya Pd. Chourasia. 2. Punam Chourasia wife of Ashok Kumar Chourasia, Both resident of Mohalla Nayagaon Thakurbari Road, P.S. Jamalpur (East Colony), District Munger. ..Defendants-Respondents 1st set-Respondents 1st set. 3. Rajendra Das son of Ramdhani Das, Resident of Mohalla Kailash Nagar, P. S. Bandil, District Hoogly (West Bengal). 4. Manorma Chourasia daughter of Ramdhani Das, Resident of Mohalla Pattam, P. S. Muffasil, District Munger. 5. Adyanand Mandal son of Harilal Mandal, Resident of village Jhanjhura, P.S. Parbatta, District Khagaria. …Defendants-Respondents 2nd set-Respondents 2nd set. 6. Jugal Kishore Mandal 7. Indradeo Mandal. Both sons of Narain Mandal. 8. Brahmdeo Mandal son of Narain Mandal, Residents of village Nayagaon, P.S. Jamalpur, District Munger. ….Defendants-Respondents 3rd set-Respondents 3rd set. For the appellants : Mr. Harshwardhan Sahay, Advocate. For the respondents : None. ----------- 07/ 22.04.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by plaintiffs- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit No.02 of 1988, which was filed by the plaintiffs against some of the members of the family as well as some outsiders for declaration of their title and for other ancillary reliefs. The said suit was dismissed on contest by Additional Munsif-IV, Munger vide his judgment and 2 decree dated 25.05.1995. 4. Against the aforesaid judgment and decree of the trial court the plaintiffs filed Title Appeal No.10 of 1995 which was also dismissed by Additional District Judge-IX, Munger vide his judgment and decree dated 24.12.2002. Against the aforesaid judgments and decree of the courts below the instant second appeal has been filed. 5. Although learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the courts below claiming that the suit land was purchased by plaintiff no.1, out of her stridhan and hence it cannot be legally presumed to be the property of joint family of her husband. He further claims that onus was wrongly placed upon the plaintiffs to prove their claim although the onus was squarely upon the defendants to prove that there was a nucleus of the joint family and in absence of any such nucleus the claim of the defendants had no legs to stand. In this connection he relies upon a decision of the Apex Court in case of Mudigowda Gowdappa Sankh and others vs. Ramchandra Revgowda Sankha (dead) by his legal representatives and another, reported in A.I.R. 1969 SC 1076. 6. From the arguments as well as from the materials on record, including the impugned judgments and decree of the courts below, it is quite apparent that both the courts below had formulated specific issues as to whether the suit property was a self-acquired property of Ahilya Devi and others and had 3 elaborately considered the said point in their respective judgments. The courts below specifically found that the claim of the plaintiff no.1 raised in the plaint was contradicted in her deposition as PW.7 because in the plaint plaintiff no.1 had claimed that consideration money was paid by her mother for the purchase of the suit land, whereas in her deposition as PW.7 she stated that consideration money was paid by her father. There being no collateral evidence in support of either of the two statements, there was nothing to believe the contradictory claim of plaintiff no.1. The courts below also found that admittedly the sale deed in question was in the name of Ahilya Devi and Adyanand Mandal having 15 annas and 01 anna interest respectively, but the statement of Adyanand Mandal, who came to depose on behalf of the plaintiffs, showed that he claimed half share in the plot sold which was completely inconsistent with the sale deed produced by the plaintiffs. Furthermore, PW.5 Sudhir Mandal, who is one of the vendors, in his evidence had also stated that consideration money was paid by Narain Mandal, who was the father-in-law of plaintiff no.1 Ahilya Devi and the said fact was also supported by the deed of partition. 7. It is not in dispute that the deed of partition was not admissible in evidence because from its contents it appeared that a partial partition had taken place through that deed which was unregistered, but the said deed can be used for collateral purposes. So far plaintiffs’ claim that the partition deed was not signed by 4 plaintiff no.1 Ahilya Devi is concerned, it is quite clear that if the suit land was purchased by her father-in-law as karta of the joint family in her name, she admittedly not being a coparcener there was no occasion for her signature on the said deed of partition, specially when her husband who is plaintiff-appellant no.2 had duly signed that deed. Furthermore, the evidence on record, including oral evidence adduced on behalf of Jugal Kishore Mandal (defendant no.6) clearly showed that the property was acquired by Narain Mandal, who had paid consideration money on behalf of the family and the property was used and enjoyed by the family of Narain Mandal, who was the father-in-law of plaintiff no.1 and father of plaintiff no.2, and the entire family including the plaintiffs and other brothers of plaintiff no.2 and members of the family throughout enjoyed the suit properties as joint family property. 8. So far the question of nucleus of the family as well as onus of proving the said deed is concerned, learned counsel for the appellants has relied upon a decision of the Apex Court in case of Mudigowda Gowdappa Sankh and others (Supra) in which it was held that the burden of proving any particular property to be joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the existence of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This will however be subject 5 to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. 9. In the light of the aforesaid decision when the facts of this case is taken into consideration, it is quite apparent that due to contradiction in the statements of plaintiff no.1 she was unable to support her claim, whereas her own witness had clearly stated that the suit property was purchased from the amount paid by the head of the joint family, namely, Narain Mandal. Furthermore, it was not in dispute that plaintiff no.1 had no fund of her own to purchase the suit land and according to her pleadings it was purchased from the money given by her mother, but according to her deposition it was purchased from the money given by her father, whereas her own witness, who deposed on her behalf, admitted that the suit land was purchased from consideration money paid by the karta of the joint family, namely, Narain Mandal regarding whom no objection was ever raised that he had no such money to purchase the same specially in view of the fact that there was a large number of properties of the joint family apart from the suit land, which was subsequently partitioned. Thus, the facts involved in the aforesaid case law is completely different from the facts of the instant case and accordingly the same is not applicable to the instant case. 10. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the courts below nor does it find any substantial question of law 6 involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )