FIRST APPEAL No. 175 OF 2007 Against the judgment and decree dated 18.04.2007 passed by Sri Om Prakash, Sub Judge 1st Khagaria in Title Suit No. 99 of 2000. KRISHNA KANT VERMA ………. Plaintiff/Appellant Versus MAHESHWAR PRASAD & ORS. ……… Defendants/Respondents ******** For the appellant : Mr. Dronacharya, Advocate Mr. Akhileshwar Pandey, Advocate For the respondents : Mr. Shrinandan Prasad Singh, Advocate Mr. Ashok Kumar, Advocate Mr. Surendra Prasad Singh, Advocate Dated : 30th day of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal has been filed by the plaintiff-appellant against the judgment and decree dated 18.04.2007 passed by Sri Om Prakash, the learned Sub Judge Ist, Khagaria in Title Suit No. 99 of 2000 dismissing the plaintiff’s suit for partition. 2. The plaintiff-appellant filed the aforesaid partition suit to the extent of the share of the plaintiff alleging that Ambika Sahai, who was a teacher in P.W. High School, from his earning, purchased the suit land and constructed a house thereon. The suit house is only residential house of the family. On his death the property devolved upon the sons and daughters equally. He had three sons namely late Mungeshwar Sahoo, J. -2- Dineshwar Prasad, Maheshwar Prasad and Lala Umeshwar Prasad and three daughters namely Vimla Devi, Mohini Devi and Kishori Devi. The plaintiff is the son of late Dineshwar Prasad. The other sons and daughters are defendants in the suit. The parties are in joint possession of the suit property and they have unity of title and possession. The plaintiff is experiencing difficulty and therefore, requested the defendants for partitioning the suit property amicably but the defendant No.1 refused to partition. Hence the suit for partition is filed. 3. The defendant No.1 appeared and filed a contesting written statement. Besides taking various legal pleas the defendants contended that late Ambika Sahai never purchased the suit land. He had no ancestral land or other property to maintain the family. All the properties were sold by his father at Bhagalpur to maintain the family and late Ambika Sahai came to Khagaria in 1953 and started teaching job. He was teacher of P.W. Primary School at a very low monthly pay. He had no other source of income except his salary as teacher. He retired in 1958-59 and at that time his monthly salary was Rs.25/-. He married his daughter Vimla in 1939 borrowing loan from different persons. The eldest son i.e. Dineshwar Prasad died in 1946 when the plaintiff was aged about three years. The plaintiff’s mother also died in 1948. The defendant came in service in the year 1947 and retired in 1984 from the post of Junior Engineer, Waterways Department. The defendant No.1 was helping his father in maintaining his family and also maintaining the plaintiff and provided him education and all facilities. The defendant No.1 also got the plaintiff married. 4. The further defence is that late Ambika Sahai had no means except the salary and his salary was not so high that he could have purchased the suit land. The second daughter of late Ambika Sahai -3- was married in January 1954. The defendant met all the expenses. The third daughter was married in 1963 and the defendant incurred the expenses. Late Ambika Sahai was residing in a rented house. This defendant from his income purchased three kattha land mentioned in the schedule of the land through two registered sale deeds dated 2.12.1954 and 19.5.1956 for a consideration of Rs.1000/- each in the name of his father late Ambika Sahai. The entire consideration amount was paid by the defendant. The defendant No.1 purchased the land in the name of his father in token of respect to him and his father was not in a position to contribute in purchasing the suit land. The defendant No.1 had taken loan from the housing department in the name of his father under Yojana No. 2/56-57 and purchased the land. The defendant also borrowed Rs.4000/- for construction of the house and constructed the suit house out of his own income and paid the loan amount. The defendant No.2 joined in service in 1962 and he was married in 1963. This defendant had to meet all expenses and facilities. The plaintiff was married in 1971 and in 1972 he went to another place where he is living in a rented house at Khagaria and is earning there from his contract business. He never made any contribution to maintain the family. 5. The further defence is that for non-payment of loan a Certificate Case No. 3 of 1969-70 was initiated against the defendant No.1 after death of Ambika Sahai. The defendant Nos.1 and 2 only paid the alleged loan and the remaining was adjusted by deducting from the salary of defendant Nos.1 and 2. The name of defendant Nos.1 and 2 have been mutated in the Sarista of Anchal Adhikari and Khagaria municipality and they are paying rent. The defendant No.2 had constructed a house in a portion of the suit land as he had contributed in repayment of loan and, therefore, the defendant No.1 permitted him to construct the house. The defendant No.1 therefore, -4- claimed that the suit property is the self acquired property of the defendant No.1 and there is no unity of title and possession of the parties. 6. On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues :- “i. Whether the suit, as framed, is maintainable ? ii. Whether the plaintiff has got any cause of action or right to sue ? iii. Is there unity of title and possession with respect to Schedule-1 property among the parties of the suit ? iv. Whether the suit property was acquired with the aid of joint family fund or it is self-acquisition of defendant No.1 ? v. Whether the plaintiff is entitled to a decree for partition of the suit suit-property ? vi. To what other relief or reliefs for which plaintiff is entitled ?” 7. After trial the learned court below found that the plaintiff has failed to establish that the family has got sufficient nucleus to enable Mr. Sahai to purchase the suit property as propounded in the plaint and thus, failed to discharge heavy onus lying on him and therefore, dismissed the plaintiff’s suit. 8. The learned counsel Mr. Dronacharya appearing on behalf of the appellant submitted that the learned court below has wrongly placed onus on the plaintiff to prove that the suit property was acquired out of joint family income by late Ambika Sahai when admittedly, the registered sale deeds of the year 1954-1956 stands in the name of late Ambika Sahai and further the loan was also sanctioned in the name of late Ambika Sahai. The learned counsel further submitted that it was the case of the plaintiff that the suit -5- property was purchased by late Ambika Sahai out of his income. Admittedly, late Ambika Sahai was teacher and the plaintiff adduced evidences in support of his income but the learned court below finally did not rely upon those evidences and dismissed the suit. According to the learned counsel the learned court below has applied the law in wrong manner. The learned counsel further submitted that admittedly, the suit property stands in the name of late Ambika Sahai and the defendant No.1 is claiming to be the real owner and, therefore, this defence cannot be allowed to be raised in view of Section 4 of Benami Transaction Prohibition Act, 1988. Moreover, mere claim to be the real owner is not sufficient. The onus is on the defendant No.1 to prove that he had the sufficient income at the time of acquisition of the property and out of that income he purchased the land. According to the learned counsel in the present case, the defendant has not been able to show that out of his income he paid the consideration amount. The learned counsel further submitted that admittedly the defendant No.2 has also constructed a house in a portion of the suit land. Had it been the self acquired property of defendant No.1, the defendant No.2 would not have constructed a house. The learned counsel further submitted that after death of late Ambika Sahai the defendant Nos. 1 and 2 repaid the loan amount which is their moral duty but on that ground alone there can be no presumption that the property was purchased by defendant No.1 in the name of his father land Ambika Sahai and that he also took loan in the name of his father. On this ground the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit be decreed. 9. On the other hand, the learned counsel for the respondents submitted that there is no illegality in the impugned judgment and decree and, therefore, it cannot be interfered with in this first appeal. The learned counsel further submitted that since the father of the -6- defendant No.1 was getting a megre amount as salary when the property was acquired it was for the plaintiff to prove that from where late Ambika Sahai got the amount and purchased the suit property. Therefore, the learned court below has rightly placed the onus on him and found there is no reliable evidence so the suit for partition has been dismissed. The learned counsel further submitted that since the father sands in fiduciary capacity with the son and therefore, Section 4 of the Benami Transaction Act is not applicable in the present case. On these submissions, the learned counsel submitted that the first appeal is liable to be dismissed. 10. In view of the above submissions of the parties, the points arises for consideration in this appeal is, as to whether there is unity of title and possession between the parties with regard to the suit properties and whether the plaintiff is entitled for his share in the suit property or whether it is self acquired property of defendant No.1 and whether the impugned judgment and decree are sustainable in the eye of law. 11. Admittedly, the suit properties have been purchased through two registered sale deeds dated 2.12.1954 and 29.5.1956 which have been marked as Ext.2 and 2/A. It is also admitted that the purchaser in both the sale deeds is late Ambika Sahai and the consideration amount in both the sale deeds is Rs.1000/-. It is also admitted case of the parties that at that time late Ambika Sahai was a teacher in the school. It is the specific case of the plaintiff that the suit property was purchased by late Ambika Sahai out of his own income. The case of defendant No.1 is that it was purchased by the defendant No.1 in the name of his father. Nowhere it is the case of either party that the property was purchased out of joint family fund or out of the income from joint family property. Further it is the case of the -7- defendant No.1 himself that late Ambika Sahai had no property at all and according to plaintiff the suit property is the only residential house of the family. Therefore, the dispute between the parties is according to plaintiff it is the property purchased by late Ambika Sahai out of his own income and according to defendant No.1 it is self acquired property purchased by him in the name of his father. From perusal of the impugned judgment, it appears that the learned court below at paragraph 9 proceeded to decide this question applying the law that a Hindu joint family is presumed to be joint subject to rebuttal and when in a suit for partition a party claims that any particular item of the property is the property of joint family the burden of proving that it is so vests on the party asserting. It may be mentioned here that it is not the case of either the plaintiff or the defendants that the property is joint family property. As stated above, according to the plaintiff it is the property of late Ambika Sahai and admittedly, the documents of title i.e. Ext.2 series stands in his name. Therefore, it appears that the learned court below approached the case in wrong angle. The plaintiff is not claiming the property to be joint family property. His case is that on the death of late Ambika Sahai the property devolved upon his sons and daughters. It further appears that the learned court below further observed that “where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family”. So far this observation of the learned court below in paragraph 9 is not applicable against the plaintiff. Here it may be reiterated that the documents stands in the name of late Ambika Sahai therefore, it is for the defendant to prove that in fact he purchased the -8- property out of his own income and late Ambika Prasad had not contributed anything. 12. It further appears that the learned court below proceeded to find out the extent of nucleus. As stated above this approach is misconceived in this case as it is not the case that the property was purchased out of joint family fund. PW 3 who is plaintiff himself in his evidence clearly stated that late Ambika Sahai was teacher in P.W. High School and was getting Rs.50/- per month as salary. At paragraph 49 he has clearly stated that he was also earning about Rs.100/- per month from tuition. The learned court below disbelieved the story of income from tuition on the ground that it is not pleaded in the plaint. So far this question is concerned it may be mentioned here that it is the case of the plaintiff in the plaint that late Ambika Sahia was a teacher and out of his own income he purchased the suit property. So far this income is concerned the plaintiff is explaining in his evidence about the income. It is well settled principles of law that evidence is not required to be pleaded. Therefore, the learned court below has wrongly discarded this part of the evidence. Moreover, as stated above admittedly late Ambika Sahai was a teacher and was earning member. He joined his service in 1933 and the sale deeds are in his name. Now therefore, it is for the defendant No.1 to show that from where he purchased the suit property. 13. The defendant has adduced oral as well as documentary evidence in this case. DW 1 Virendra Kumar has only stated that late Ambika Sahia was the teacher and earlier he was residing in rented house. DW 2 to 11 are formal witnesses. DW 12 is the defendant No.1. In his evidence he has stated that since 1947 his father started teaching in P.W. High School and was getting Rs.25/- and he retired in 1958. He was maintaining the family out of his salary. The defendant -9- No.1 purchased 1.5 kattha in 1954 and 1.5 kattha in 1956 in the name of his father and his father has never contributed money for purchasing the property. Prior to that he had taken loan in the name of his father. He has stated that after death of his father he and defendant No.2 repaid the loan and this defendant No.1 was maintaining the family. This defendant has further stated that in 1947 he joint as sub overseer and he obtained the loan. In certificate case No.3 of 1969-70 he repaid the loan. These are the oral evidences adduced on behalf of the defendants. From perusal of the evidences no where defendant No.1 has stated what was his salary per month. He has also not stated as to what was his expenses per month and what was the saving per month. As stated by himself he was helping the father in maintaining the family. He was meeting the expenses of marriage and after death of plaintiff’s father he was provided him education. Therefore, it was the duty of the defendant No.1 to have given his savings out of which he could have purchased the suit property. There is no evidence at all regarding his income and saving. In such circumstances, there can be no presumption that he purchased suit property in the name of his father. This is mere statement in his evidence. There is no evidence regarding the saving and moreover there is no reason as to why he would have purchased the property in the name of his father. How he obtained the loan in the name of his father. No doubt Ext. G and E show that he and the defendant No.1 repaid the loan but that does not mean that the property has been purchased by the defendant No.1. Admittedly, the certificate case was started after death of late Ambika Sahai. Naturally, therefore, the defendant Nos. 1 and 2 were the earning member and paid the loan amount. According to the defendants, the plaintiff did not pay anything therefore, they may recover the amount from the plaintiff but on that ground alone it cannot be said that the properties have been -10- purchased by the defendant No.1 in the name of his father. Admittedly, the loan was also taken in the name of late Ambika Sahai. On the contrary as discussed above there is specific pleading of the plaintiff and also evidence of the plaintiff about the income of late Ambika Sahai and moreover the documents are in favour of the plaintiff. It is for the defendant to prove his case of self acquisition. From perusal of the evidences as discussed above instead of proving his self acquisition the defendants have adduced evidence denying the allegation and income of his father Ambika Sahai. Therefore, he has adduced the negative evidence instead of producing positive evidence about his claim. The learned court below instead of examining the case in this light proceeded to decide the question as to whether the property is self acquired property of defendant No.1 or whether it is the property of joint family. As stated above this was never the case of any party. 14. The learned counsel for the respondents submitted that admittedly the plaintiff is residing outside in a rented house and, therefore, there is no question of unity of title and possession, so far this submission is concerned I find no force. The possession of one co- sharer is the possession of another co-sharer. Moreover, it is not the case of the defendants that they have ousted the plaintiff. It is admitted case of the parties that the plaintiff is residing in a rented house at Khagaria in relation to his contract business. Merely, because he is residing in a rented house if he has got title in the property it cannot be said that his title is extinguished. 15. The learned counsel next contended that the property is standing in the name of the defendant Nos. 1 and 2 in the municipality. So far this submission is concerned it may be mentioned here that this documents Ext.B series, Ext. G and E are revenue -11- records and rent receipts which neither creates title nor extinguish title. Admittedly, the property stands in the name of late Ambika Sahai. As discussed above, there is no evidence to show what was the income of defendant No.1 and what was his monthly saving and why he purchased the property in the name of his father and why he obtained loan in the name of his father. Admittedly both were in government service. The father was at the age of retirement as it is admitted that he retired in the year 1957-58 whereas the defendant No.1 came in service only in the year 1947 and according to him he was meeting the family expenses and helping his father. 16. In view of my above discussion, I find that the defendant No.1 has failed to prove that the suit property is his self acquired property in the name of his father. The finding of the learned court below on this point is therefore, reversed and it is held that the suit property was acquired by late Ambika Sahai and he constructed the house after taking loan. I also find that after his death the defendant Nos.1 and 2 have only repaid the loans. I therefore, ultimately come to the conclusion that on the death of late Ambika Sahai the property devolved equally on his heirs and, therefore, there is unity of title and possession between the parties. 17. In the result, this first appeal is allowed. The impugned judgment and decree are set aside and the plaintiff’s suit for partition is decreed with cost of Rs.10000/- which he is entitled to recover from the defendants. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 30th March, 2011 S.S./A.F.R.