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' _ * -~ -‘ ~ #W\__ - _ ____ - - : - e ‘ er _ T f Mh HIGH COURT OF CHHATTISGARH AT BILASPUR Sin le Bench: M“ Hon’ble Shri Justice Prashant Kumar Mishra FirstvAQQeal No.199 of 2008 Sudhakar Rao Silledar verSUS Dinker Rao Siliedar and others W Post for 21-10-2010 Sd/~ Prashant kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR M Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Shri Ashish Shrivastava and Shri appellant. Shri Sanjay K. Agrawal, counsel for respondents No.1 and 4. Shri Manoj Paranjpe, counsel for respondents No.2 and 3. (Delivered on 2 “October, 201 0) This is plaintiff’s first appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth ‘the Code') questioning the legality and validity of the impugned judgment and decree dated 27- 9-2008 passed by the trial Court dismissing his suit for partition of his 1/2 share in the suit house bearing Nazul Sheet No.10 Plot No.67/02 situated at Tilak Nagar, Bilaspur as described in Schdule A with the plaint. 2. The plaintiff’s case, in short, is that he himself, respondent No.1 Dinker Rao and respondent No.4 Bhasker Rao are the three sons of Krishna Rao. Original defendant No.2 Tara (represented by her legal heir Ramakant as defendant No.2/respondent No.2) and defendant No.3/respondent No.3 Usha are the daughters of late Krishna Rao, who died in the year 1948. The family was brought up First Apgeal No.199 of 2008 First Aggeal under Section 96 of the Code of Civil Procedure, 1908 JUDGMENT l e / Appeliant Sudhakar Rao SiHedar versus Resgondents Dinker Rao Silledar and others Present: by their mother Indira Bai. Krishna Rao possessed 25 acres of agricutturaf fand and house situated at ViHage Parsada, however, with respect to the suit house the ptaintiff was assured by defendant No.1 that as and when ciaim woutd be made by the remaining two brothers, i.e., the plaintiff and defendant No.4 Bhasker, their share wiii be aiiotted in the suit house. Defendant No.4 Bhasker was aiiotted his share, however, the piaintiff has not been given any share. Thus, the piaintiff is compelled to me the present suit for partition. 3. Defendant No.1, in his written statement, averred that oral partition of the agricultural land and house at Village Parsada was made in the year 1988, which was subsequently reduced to writing as memorandum on 10-12—1994 for agricultural land and on 8—3- 1995 for the house at Parsada. lt was further stated that even in the year 1988, the famiiy arrangement/partition was written by the plaintiff himself and that after the said partition, the three brothers are enjoying separate possession of their respective shares. This /defendant joined Government service in 1945 and was residing in a 3 tenanted house at Tilak Nagar, subsequently defendant No.4 Bhasker aiso joined Government service at Bilaspur and started residing with defendant No.1. The suit house was purchased by defendant No.1 Dinker and defendant No.4 Bhasker by contributing amount from their own income and they shifted to the suit house and the tenanted accommodation was occupied by the plaintiff and mother indira Bai. Defendant No.1 obtained loan from housing society and has made alterations and additional constructions from the loan amount from his own income. Thus, defendant No.1 denied that the suit house is joint family property. It was further stated that defendant No.4 was subsequently given share in proportion to the contribution made by him while purchasing the suit house. 4. Defendants No.2 and 3 supported the plaintiff's claim for partition. 5. Defendant No.4 averred in his written statement that mother lndira Bai cannot be the Karta of the joint family according to the Hindu law. He contributed Rs.3,500/- at the time of purchasing the suit house and thus he has been allotted 432 Sq.Ft. of the house by. defendant No.1 but the said allotment was not on account of he being a member of the joint family but the same was made on account of the contribution made by him while purchasing the suit house. This defendant also denied that either the amount received by lndira Bai from sale of her share in her parental property at Nagpur or the income of the joint family was used in purchasing the suit house. It was further stated by him that defendant No.1 and himself were occupying such portion of the suit house in proportion / wit 4 to their contribution, however, since the Government records contained name of defendant No.1 only, the registered~deed of partition was executed between them on 2-5—2003 (Ex.D~4). 6. The trial Court dismissed the suit after finding that the suit house does not belong to the joint family as it was not purchased by the mother from her income or from the income of the joint family property. lt has been held by the trial Court that the suit property is the self acquired property of defendant No.1 and defendant No.4 and they have partitioned the suit house between them in proportion to their contribution at the time of purchasing the suit house. in view of these findings, the trial Court dismissed the plaintiffs suit. 7. Shri Ashish Shrivastava and Shri Rakesh Dubey, learned counsel appearing for the appellant have argued that in view of the averments made in paragraphs 2 and 3 of the written statement of defendant No.1 the existence of joint family is an admitted fact and vide Ex.P-1 it is proved that mother lndira Bai had sold her share in her parental property at Nagpur and possessed sufhcient amount to purchase the suit house in the year 1957. Learned counsel would further submit that the finding recorded by the trial Court to the effect that the suit house was not the joint family property is absolutely perverse and is contrary to the principles of Hindu law concerning joint family and joint family property. Learned counsel have relied on the commentary on Hindu Law by Mulla, 20‘“ Edition, Chapter 12, Paragraph 231 and he judgments rendered by the Hon’ble Supreme Court in Baikuntha Nath Paramanik (Dead) By His L.Rs. and “Heirs vs. Sashi Bhusan Pramanik (Dead) By His L.Rs. and Vt; 5 others, (1973) 2 SCC 334, Mudi Gowda Gowdappa Sankh vs. Ram Chandra Ravagowda Sankh, (1969) 1 SCC 386, [ndranarayan vs. RoopvNarayan and another, (1971) 2 SCC 438 and Chandreshwar Singh and others vs. Ramchandra Singh and others, AIR 1973 Patna 215. 8. Per contra, Shri Sanjay K. Agrawal, learned counsel appearing for respondents No.1 and 4 would submit that the findings recorded by the trial Court are based on proper appreciation and reading of the pieadings and evidence available on record and there is absolutely no perversity or illegality committed by the trial Court while dismissing the suit. Learned counsel would further submit that the fact that partition was effected by the mother in 1988, which was reduced to writing twice in December, 1994 and March, 1995 would ‘dehnitely suggest and should be taken as conclusive of the issue that the mother herself was treating the suit house as the self— acqulred property of defendant No.1 and defendant No.4, otherwise the suit house should have formed a part of the partition effected between the three brothers in 1988, which was reduced to writing in 1994 and 1995. Learned counsel has relied on the judgments in Jaydayal Poddar (Deceased) Through L.Rs. and another vs. Mst. Bibi Hazra and others, (1974) 1 SCC 3, Rajinder Prashad Malik vs. Shanti Devi Malik and others, AIR 2003 Punjab & Haryana 29, R. Rajagopal Reddy (Dead) By LRs. and others vs. Padmini Chandrasekharan (Dead) By LRs., (1995) 2 SCC 630, Anil Bhasin vs. Vijay Kumar Bhasin and others, 2003 AIHC / 2234, Kenchegowda (Since Deceased) By Legal W» 6 Representatives vs. Siddegowda alias Motegowda, (1994) 4 SCC 294 and lshwar Dass Jain (Dead) Through LRs. vs. Sohan Lal (Dead) By LRs., (2000) 1 SCC 434. 9. Shri Manoj Paranjpe, learned counsel appearing for respondents No.2 and 3 (sisters) has argued that defendant No.1 was not possessed of sufficient funds with him in the year 1967 and, therefore, as per his own pleading, he sought nnanciai assistance from defendant No.4 and thus the suit house does not become his self-acquired property and the plaintiff’s case that the suit house was purchased from joint family income and from the income of mother lndira Bai, which she had received by selling her share in the parental property at Nagpur, is proved. Learned counsel, while supporting the case of the plaintiff/appellant, would further submit that the findings recorded by the triai Court are perverse and the appeal deserves to be allowed. He has placed reliance on Appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade and others, AIR 2007 SC 218, Makhan Singh (D) by LRs. vs. Kulwant Singh, AIR 2007 SC 1808, Surendra Kumar vs. Phoolchand (Dead) Through LRs. and another, (1996) 2 SCC 491 and D.S.Lakshmaiah and another vs. L.Balasubramanyam and another, 2003 AIR SCW 4347. 10. The focal issue for determination in the present appeai is about the nature of the property; whether on the state of evidence on record the plaintiff has proved that the suit house was joint family property or it was purchased by defendant No.1 in his own name /' after seeking some financial assistance from defendant No.4. 11. Learned counsel appearing for the parties have extensively read and drawn attention of the Court to the‘various parts of the pleadings and the statements made by the witnesses to buttress their respective submissions. 12. This Court shall now consider the evidence available on record in order to assess the correctness of the finding recorded by the trial Court with respect to the core issue involved in the suit and in this appeal. The main plank of the plaintiff’s case is that the suit house was purchased by mother lndira Bai from the sale proceeds received by her from sale of her share in her parental house at Nagpur and from the income of the joint family and agricultural lands situated at Village Parsada. Ex.P~1 is he sale-deed executed by lndira Bai with respect to her share in the Nagpur’s property wherein she received Rs.5,000/- as sale consideration. On the other hand, defendant No.1 and defendant No.4 have asserted that defendant No.1 entered into Government service in 1946 and hence he was having funds from the savings made by him during his service of 20 years, i.e., from 1946 to 1967 when the suit house was purchased. lt is the specific case of defendant No.1 that he was failing short of some funds, therefore, he obtained [can/financial assistance of Rs.3,500/- from defendant No.4, which has also been supported in the written statement as well as in the statement of defendant No.4. 13. Admittedly, there was no severance of status of the members of the joint family in the year 1967 when the suit house was ’p/urchased. Funds for purchase of this house has been pleaded and ' 8 proved vide Ex.P—1, wherein mother lndira Bai received Rs.5,000/—. The joint family was also in possession of nucleus in form of agricultural land at Parsada to acquire the suit house. in the matter of Baikuntha Nath Paramanik (Dead) By His L.Rs. and Heirs vs. Sashi Bhusan Pramanik (Dead) By His L.Rs. and others (supra), the Hon’ble Supreme Court has held in paragraph 10 of the report that when a joint family is found to be in possession of nucleus sufdcient to make impugned acquisitions, then a presumption arises that the acquisitions standing in the names of individuals of the joint family are family acquisitions. in the matter of Srinivas Krishnarao Kango vs. Narayan Devji Kango and others, AIR 1954 SC 379, the Hon’ble Supreme Court, whiie dealing with the issue as to whom the burden of proof in a matter like this lies, has held in paragraph 8 of the report thus: “8. ............ “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 property 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 acguired, the burden shifts to the party alleging self-acguisition to establish affirmatively that the property was acguired without the aid of the joint , family property: See — ‘Babubhai Girdharlal v. Ujamlal Hargovandas‘, AIR 1937 Bom 446 (D); —— ‘Venkataramayya v. Seshamma’, AIR 1937 Mad 538 (E); - — ‘Vythianatha v. Varadaraa’, AIR 1938 Mad 841 (F)"." (emphasis supplied) j 14. ln the case in hand, as earlier discussed, existence of nucleus of the joint family is proved. The plaintiff as wen as defendant No.1 (paragraph 15 of his cross-examination) admit that in the year 1967 mother Indira Bai was taking care of the cultivation. Thus, the burden to prove that the property was acquired by defendant No.1 from his separate income Iies on him. 15. This Court shalt now examine as to whether defendant No.1 has been able to successfully discharge that burden or the circumstances which point out and lead to an inference that the defence set up by defendant No.1 with the help of defendant No.4 are not believable. The plaintiff as well as defendant No.1 and defendant No.4 have made statements in support of their respective cases, therefore, the Court is required to examine what are the other circumstances by which it can be found one way or the other about the nature of the property. Ex.D-5 is the sale-deed by which the suit house was acquired. The sale was effected by Basant Rao, son of Laxman Rao Bagh and Smt. Rukhmani Bai, wife of Laxman Rao Bagh in the name of defendant No.1. The witnesses to the sale— deed dated 14-8-1967 are Manas Dubey and Shiv Prasad Dixit. PW-3 Basant Rao is one of the vendors in the sale—deed. This witness examined by the plaintiff has stated that they had received advance of Rs.1,000/— from mother lndira Bai on 7—8—1967. The remaining amount of Rs.9,000/- was also paid by mother lndira Bai through defendant No.1 in front of the Sub-Registrar. He also says in his examination-in—chief that since defendant No.1 Dinker Rao / was the eldest son, the sale-deed was executed in his name as per 10 direction of mother Indira Bai. This witness was extensively cross— examined by the defendants, however, he remained stuck to his statement made in the examination—in-chief and has denied the suggestions that the property was purchased by Dinker Rao. Affidavit of Manas Dubey, witness to the sale—deed was filed under Order 18 Rule 4 of the Code, however, this witness has not entered the witness—box for cross-examination. On the other hand, defendant No.1 examined the other attesting witness of the saie- deed, namely, Shiv Prasad Dixit. This witness has supported the case of defendant No.1, however, in his cross-examination, he has admitted that at the time of execution of sale-deed, mother Indira Bai and her three sons were forming a joint family. He also says that he had no family relation or acquaintance with the family of lndira Bai and is also not aware as to how the expenses and other arrangements like marriages etc. were arranged in the family. From the statement made in paragraph 9 of his cross-examination, it appears that he and defendant No.1 were posted together in the Bilaspur Treasury Office at the relevant time. Defendant No1 has examned Smt. Kusum Pawa as DW—3. This witness is sister of i r PW—3 Basant Rao, one of the vendors of the sale-deed, however, she has not spoken anything material in relation to the events which took place at the time of execution of the ale-deed. 16. It is the case of defendant No.1 that since he did not had the entire amount of Rs.10,000/- in the year 1967 for purchasing the property, he obtained financial assistance/lon from defendant No.4 Bhasker Rao. Thus, it is stated that defendant No.1 contributed s a / 11 Rs.6,500/- and the remaining amount of Rs.3,500/— was contributed by defendant No.4. This story has been developed by defendant No.1 and defendant No.4 for the first time in the written statement. In the deed of partition between these two brothers (Ex.D-4), it is mentioned that the property is in joint names of both brothers (Wmzbagaawaé’rmmm). InPage3ofthe deed of partition dated 2-5-2003 (Ex.D-4), it is again mentioned that the suit house is the joint famiiy property of bbth the parties to the deed of partition. It is not mentioned in this partition-deed that the property became joint on account of the contribution made by defendant No.4, The term ‘joint property’ on the one hand and the term ‘joint famiiy property’ on the other hand are two different concepts. It is the case of defendant No.1 that name of defendant No.4 was not mentioned as purchaser in the sale-deed because he had taken Ioan from defendant No.4 meaning thereby that otherwise the property was not acquired jointly by him and defendant No.4. Thus, if the property was not jointly acquired, there is no reason as to why it should become a joint property in between defendant No.1 and defendant No.4 during subsistence of a large unit, i.e., the joint Hindu family consisting of mother and three sons and more so when the joint Hindu famiiy had a nucleus. From the case set up by defendant No.1, it would also be clear that he was not having sufficient funds to pay the entire sale—consideration of Rs.10,000/-. Since in the deed of partition (Ex.D-4), it is not mentioned that defendant No.4 had contributed Rs.3,500/— at the time of purchase, the said case set up in the written statement appears to be an after- thought. Once it is found and which is the case set up by defendant \.. m a w mm mmmw» b 12 No.1 himself that he was short of funds in 1967, the presumption that the suit house was purchased from the nucleus and income of the joint family and the amount of Rs.5,000/— possessed by mother Indira Bai became stronger. Since the burden to prove that the property was self-acquired by defendant No.1 was on defendant No.1 and from his own case it is proved that he was not having the entire amount of Rs.10,000/- at the time of purchase of the suit house, this Court is of the opinion that defendant No.1 has failed to ~ prove that the property was acquired by him as separate property. \2? 17. Shri Sanjay K. Agrawai, learned counsel for respondents No.1 and 4 has argued that the appellant/plaintiff is in fact raising a plea of Benami transaction, whereas such plea is barred under Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 (henceforth ‘the Act’). He has relied on R. Rajagopai Reddy (Dead) By LRs. and others vs. Padmini Chandrasekharan (Dead) By LRs. (supra) and Anil Bhasin vs. Vijay Kumar Bhasin and others (supra). He has also argued that since admittedly partition of agricultural land and house at Parsada has already taken place, there has been severance of status and this suit for partition is not maintainable because the plaintiff is seeking partition from 1195 Sq.Ft. out of the total area of 1627 Sq.Ft. on which the suit house is constructed. To deal with the argument relating to the prohibition under Section 4(2) of the Act, it is profitable to refer to the provisions of Section 4 of the Act, which read thus: “4. Prohibition of the right to recover property held Ibenami.—(1) No suit, claim or action to enforce any right in respect of any property held benami against the person \t \\\\K\H \ «mum «wizlm t \ t 13 in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,~— (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benent of the coparceners in the family; Ol’ (b) where the person in whose name the property is held is a trustee or other person standing in a nduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 18. On a reading of sub—section (2) quoted above, it would appear that defence based on any right in respect of any property held Benami is not permissible, however, sub-section (3) quoted above carves out exception to the impermissibility referred in sub-sections (1) and (2) of Section 4 of the Act. Under sub-section (3), it is provided that the provisions of Section 4 would not apply where the property is held in the name of a coparcener of a Hindu undivided family and the property is held for the benefit of the coparceners in /the family or person in whose name the property is held is a trustee or is standing in a fiduciary capacity and the property is held for the 14 benefit of another person for whom he is a trustee or towards whom he stands in such capacity. 19. In Pradeep Kumar vs. Mahaveer Pershad and others, AIR 2003 AP 107, Sardar Mehnga Singh vs. P.D.Das, 1993 MPLJ 416 and Kuldeep Sharma and others vs. Satyendra Kumar Sharma and others, AIR 2001 Allahabad 366, it has been held that when the property is purchased in the name of one coparcener in the famiiy or in the name of a female member of a joint family or in the name of Karta of the joint family, the provisions contained in sub- section (3) of Section 4 of the Act wouid apply and the bar under sub-sections (1) and (2) of Section 4 of the Act would not apply. Thus, in View of the above, the plea taken by respondent No.1/defendant No.1 Dinker Rao by taking shelter of sub-section (2) of Section 4 of the Act has no substance. 20. Contention of respondent No.1/defendant No.1 Dinker Rao regarding the suit being one for partial partition has also no substance because the third brother namely defendant No.4 has already got his share in the suit house and the two sisters have supported the claim of the plaintiff in their written statement and have not claimed any share in the suit house, thus, the remaining two persons between whom the property is to be partitioned will