CTK'sggSBi!®s%t''%syOT'l?w?:':<*^^ y HIGH C^Ftt OF CHHAmseARK AT B1LASPVR CORAM: HON'BLE MR T.P.SHARMA& HON'BLE MR.R.L.JHANWAR, JJ Firet Aopeal No.34 <rf 2008 Vijay Kumgr Gupta and another Versus Ajay Kumar Gupta and otheis JIUDGMENT FOR CONSIDERATION Sd/- T.P. Sharma Judge Hon'ble Mr.R.L.Jhanwar, J. Sd/- R.L. Jhanwar Judge Post for pronouncement of the Judgmenton: 3ffi/2019 Sd/- T.P. Sharma Judge V. ^tfE'.;"'^^^^'^^ ^®^^^^ ®.,«i"^s9aB8$S J?7 HfGH COURT OF CHHArriSGARH AT Bll.ASPUR FiretADpeat No.34 of2088 ; Coram: Hon'Ue Mr.T.P. Shanna & Hon'ble Mr.R.L.Jhanwar, JJ. Appellants Detendant No. Defsndant No.2 Resoondents PtainUtf Oefendant No.3 Defendant No.4 Defendant No.5 Defendant No.S Defendant No.7 1. Vijay Kumar'Qu|rta, aged at>oiA»4S yeaisS/oLatsGaneshPrajsadQy^i.I ^riculturist and ? BusinsssmaB, R/o- Vllfage Malhar. Tahal Mas^(ri^f3i$tra:!t; Bslaspur (C.G.). . « 2. Vikash Kumar Gupta, agesi aboyt 18 yeare Slo Vijay Kumar Gupta, B/o Village Malhar, Tahsii Ma^uri Distriet Bilaspur (C.G.). Versus 4. 6. Ajay Kumar ©ipta,aged aboirt 33 years Sto L^e Qanesh Prasad |3upta, Agriculturist and Businessman, R/®», Village Malhar, Tahsil Masfuri, Diyiflrt Bilaspur (C.G.) * SmtPramila Qupta> aged about 43 years W!o C.B.Gupta,, Wo .Kashria Ns^ar, High Schoot Road, Belgahna, Tahsil Kota, Dlstrict Bilaspur<C.G.) Smt.Shail Agrahari, aged about ^) yeare W/o Vinod Agrahari. Wo Gltr. No.-1, Gopal Bag, Gopal Sadan, Near Damoh Naka, Jabalpur, TahsB iund District Jabalpur (M.P.). Smt-Usha ©ufrta,aged about 38 years W/o Mukesh Gupta, R/o Flrangfpara, Kargiroad, Tahsil Kota Distriet Bita^aur (C.G.). Smt.Sangeeta ©upta,aged aboiA 35 yeare W/o Laxminarayan Gupta, Rlo Ramgudi Para, Ganja Chowk, Raigarh, Tahsil and District Raigarh (C.G.) The State of Chhattisgarh, Ihrough : The Collector, Bllaspur (C.G.) «. (FIRST APPEAL U/S 96 OF THE CODE CT CIVIL PROCgDURE, -tWS) <y, Present : . • : ' "'.'/''':,1':;::''':':':^'' Mr. Kundan Singh Thakurwith Mr.Matay Kumar Blwduri, counsetfor the appellants. Mr.Ramakant F^ndey, counsel for respondent No.l- Mr.Sanjeev Banjare, counsel for respondenfs No.2 toS. s i Mr.Chandresh Shrivastava, Panel lawyerfor respondent No.fi/State. ^' !i--^fc'" 3--J^ .^^ ^\' '!se^',/ ''»' .,:. -T^-?^ 3& .1UDGMENT (Delivered on 3nAugust,201(^ _ The judgmeirt of the Court was delivered by T.P.Sharma, <).i- 1. Chalienge in this appeal is to the judgment & cteeree etated 7.1.200& passed by the Adclitional District Judge, Bilaspur, in Civil Suit blo. 25-A/2007, whereby leamed Additional DistrhAJudge has decresdth®suK for partition filed on behatf of respondent No.1. . 2. Judgment & decree is impugnsd on the ground that whNe decreelng th® suit ttie Court below has not considered the e^dence whieh were suffident to provethe factum of eariier partition between tha psrties aund were setf-acquired properties ofthe appeitants and theFsbycomniiitted jltegality. 3. As per plaadings ofthe parties, appeltant Noi.1 and rssponclants^NOiBtG S are sons and daughters of deceased Ganesh Prasad Gufito. The jMirties were joint-owners of the properties shown in Schedute "A", they.were enjoining the txisiness. The appellants were not having any souree for evictton of the properties. Appellant Ne.1 anel respondeirt No.l entared into temporary famity arrangement after death ®fttisir fsrth^ and on the basis of such temporary arrangemsnt, appollart Na.1 was carrying floor mill business iri one part of ttie house shown in Schadute "A" and respondent No.1 was carrying business of cement in another part of ttre house. Respondent No.1 was also cultivathig 1/3 ofthe agrieultural land and appellant No.1 was cuitivating 2/^ ofthe agricultural land^shown in Sehedute "A". Properties shown in Schodute "B", "0" ancl "D" have been purchased in the names of appeilants from the income ofjointproperty. 4. On the basis of ths aforesaid pieadings, respondent No.1 has ffled the suit for partition ofthe properties shown in Schedule "A", •'B", "C" and "D". Respondents No.2 to 5 have not eontested the suit. Contesting defendants viz., appeltaNts by filing writtenstatement have centested the suit and denied the atlegations made in the plaint, they have speGWcally alleged that the partition between appellar* Ne.1 andTespondent No.tto 5 took place aft&r death of their father Ganesh Prasad Gupta anct ttey ware in separate posse^ion of the properties raceived in partltion. Outof seff-earning properties of the appellants, they haye purehasetl the properties shown in Schedule "B", "C" and "B". After partttion of the jolnt ahd Hindu Undhnded Family Property, respondent No.1 orany ofttis f-' 4-,-'.. ^ \.^.x" members are not entitied for parUUon ofthe properti^ or are n<A entittodto claim share in the setf-acquired properties ofthe appeUants. ; 5. On the basis of avermerrts made by the parties, issues were framed and after providing opportunify of hearing to the parties, vide judgment & decree impugned leamed Additionat DistrictJudgehasdeereedthe»dffor partition ofthepartiesshewninSGhedu<e"A°,-B",l©11and "D". " r 6. We have heard leamed counset forthe parties, perused thejudgment & decree and record ofths Courtbelow. 7. Leamed counsel for the appetlants vehemently arguwl that parties were in joint possession of Hindu Undivided Family Propeity in the year 4982 during life time of their father, but after deatti of their father, famity partition took place between the parties and they cama into s^arato poasesston of the properties after part'ition of the ttien properties. The appellants have aequired the properties sh<wn in Schedule "B", "C" and "D° from ttieir income and they are in pc^session of the aforasaid propertles, After partition ofjoirt family properties, respondent No.1 or any member of joint famiiy is not errtitled for repartition of the properties. WhUe deepeeir®the suit, the Court below has not considered the evtdenee of eartier patfition and acquisition of the property by the appellants aftor thsir partitton and thereby committed illegality. 8. Learned counsel placed reliance in the matter of ©arwsh&ihu and another v. Dwarika Sao and others in which the Htgh Gourt of Patiia has heid that admission of plaintiffe that disrufrtion ofjointfamilytookplace and membera possessing properties separatety, pr®/ioyspartition ^amte proved. Learned eounsel further placed reiiai«e in the mater of Pata Sahy and another v. Hiru Sahu and othws In wNch th®High Court of Patna has held that admi^ion of tt>e paitias retating to separate^mess, residence, separate cultivation of the agrtoulture land, separate transactions regarding suit properties pr<wed the factum of previoire partition. Learned counset relied upon in the matter of Digamtoar Adhar PatH v. Devram Girdhar Patil (died) and aoother3 in whic| the Apex Court has held that it is not necessary that tt»partitton diould be sfteoted by aregistered partitton deed. Even a family arrangement is enough to i'AIR1891 Patnal !2AIR 1991 Psrtna 278 3A1R 1995 SU1728 4 effectuate the partition between ceparoenere and to cmfer r^ht to a separate share and enjoyment thereof. * ;» 9. On the other hand, teamed eounssl for responctent No.1 supported the judgmerrt & decree impugned and argued that sub^antidly |>roparties shown in Schedute "A" were recorded in the lame of tateGeineshRrasaid? Gupta, father <rf appeltant No.1 and respondents No.1 to S. After death af Ganesh Prasad Gupta, partles sntered into temporarytemify arrangamsnt for betterment of the properties and as a fesutt of such tampeiraBy arrangement, appeltant No.1 and respondant No.1 were in posse^ion of different part of the properties, but no actual partBion was sffeetadat the time of such temporary arrangement. The properties were hetd iointly out of joint earning from the joint family. Properties shown in Schedule "B"; "C" and "D" were purchased m the nwne of the a|>pellsnts wNeh is permissible under law and is not hit by the pramsions sS Benami Transaction Prohibition Act. Respondent No.1 is entttled for his share 'm accordance with law upon the properties hekl jointiy or purehased from ineome of Joirrt Hindu Family. 10-Respondents No.2 to 5 have not opposed the appeat. t'[.fis per the pleadings of respenttent Na't/ptaintiff, properttos shown in Schedule "A" i.e. agriculture land and hous®situated at village Malhar was succeeded by him along wth appellant No.1 and raspendants No.2 to 5 on the death of their father Ganesh Prasad Qufto. Respondent No.1 has also pleaded that properties shewn in Schedule "B", "C" and "D" have been purohased from the income of joint properttes, ttierefere, aqapellant No.1 and respondents No.1 to 5 are having ©qi^t^iares upon the properties shown in Scheduie "A", "B", "C" and "D". Ailagations made in the plaint have been specificaily dented by the present appellants, twA filing the written statement the present appdlants have denled the aflegations made in tha plaint, they have admitted the ofdw of partttion passed by the Tahsltelar retating to the pffo.perties shown in Schactute "A" whteh is sufficient for drawlng inference that at the tima of cteatt of Ganesh Prasad Gupta he was oiwner ofthe properties shown in Schedule "A". 12. On the baSis of pleadings and evidence of the paties, tt <an be inTerred that Ganesh Prasad Gupta died leaving behind his tmo sonsj.e. appdiant No.1 and respondent No.1 and four daughtws i.e. respondents No.2 to 5. At the time of his death, he was owner of the properties of land and heuse (1o F' t1 shown in Schedute "A" sttuated stt village Malhar. As per pleading of respondent No.l/plaintiff in paras 2 to 6 of the plaint, after deathr of Ganesh Prasad Gupta on the basis of temporary famity arrangament, respondent No.1 and appetlant No.1 were in separate poss^sion of part 4 of the house and land and thereafter, appellant No.l has purehasad ttic properties in Ws name and name of appeilant No.2 fr®mthe ineome afjoint f i, ::-....^...-:,*.;-,.„„,.„,.»:,,-^* family property which shows that after death of GaneshffraMdl Oupta< i appeilant No.1 and respondent No.1 vyere in separate possesston ofrttie properties lefl: by deceased Ganesh Prasad ©upta,may be on aceount of purely tem(>orary family arrangement and not as a reaitt of flriai partitton and thereafter, properties shown in Scbedule "B", "C" and "D" have been acquired by th®appellants in their names. Both the parties have ted their evidences in order to prove their claims and pleadings. 13-AdmHtedty, the properties shown in Sehedule "B", "C" and "D" are not in the names of joint famUy but in the names of the appellants. Burden to prove the ailegations made in the plairrt was prima^y on toe piaintiff. The ptaintiff himseif has examined as PW-1 who has deposed in affidavitthat appellants have acquired the properties in thelr naraes showffi in Schedtde "B", "C" and "D" out of income ofthe joint family property. in para 19 ofhis detail cross-examination, he has admitted that he does not knowftat hew much land was purohased after de'ath of his father, even he was not in a position to say the deseription ofthe properttes. In para 21 of his cross- examination, he has admitted that he is running genarat stpres isusjness independently without any interference ofappeltant No.1 and appellants are residing in separate part ofthe sam®house. Ha has ateo admitted in para 24 of his cross-axaminaUon that he has also purchased the properties vide Ex.P/3, he is in possession ef the aforesMd preperties and j- has purchaswl the same from his own hcome. Ukewss appeitant No.1 has pttrohased the propertfes vide Exs.P/5 to P/15 fn his name and name of his son. The evidence of respondent No.l/plaintiff cteariy shows that after death of his father he has purohassd the propwties from his own income. Appellant No.1 has also pdrchased the properfles which he does not know. He has not adduced any evidence to show that the qspeilants have putchased the properties shown in Schedute "B", "C" and "0" from income of joint property. Admittedfy, the appeNants have^purehased the ; properties without any permission or consent of respondsnt No.1. Respondent No.1 has failed to prove that same have been purchascd or '*!!•, 4 :<;~,^ ••'.-fa.at.y- y / acquired from the income of joint Hindu property. Co-owner or a?-sharar or member of Jotnt Hindu Family Property is competsnt to aequire the properties from his own income as his seM-acquired property. u! 14./te held by the Apex Court and the H^h Court of Patna in the aforeseid cited cases, partition of Joint Hindu Property may be by other means and even by family arrangement, but in the present case, admittedly, as pcr pleadings oftheparties, no share wasaitrtt8dtorespoiideRtsNo;2to5at the time of such family arrangement, therefwe, it cannot be tnferred that partition was effected between the parties. 15.Evklence of respondent No.l/plalntiff is suffictent to auffiee Ns all^aBon that the appellants have purchased the propertias shown in SehaElule "B", "C" and "D" from the income of Joint Hindu Propaty. in these circumstances, properties shown in Schedule "B", "C" and "D"are not Joiitt Hindu Family Property liable for partition, but theprot»rties shown in Schedule "A" are the properties succaeded fey ^pellant No.1 and respondents No.1 to 5 from their father are liabie for partitlon. AU tiairs i.e. two sons and four daughters of deceased ©ane^iPrasad Oujrta are entitled fbr 1/6' shares each in the JointH}ndyPro(>ertylnth9;fi(OS"erties leftbyGanesh Prasad Gupta shown in Schedule "A". , IS.While passing the judgment & decree impugned, the Court bel<w has not considered the aforesakl fact that fn the absence ofany evidenea relating to joint ownership of the properlies shown in Schedule *B", "O" and "0?w acquisition of the properties shown in Schedule "B", "C" and "D" from th& joint income. The properties shiwm in Schedute "B", "C* and "Ey were not tiable tor partillon behween the aforesaid parties. No avy point has been argued by any of the parties. The onty propertles shown in Sehedule "A" is open for partition between heirs of deceased Ganesh Prasad Gupta i.e. sons and daughters. 17.Consequently, the appeal is partly atlowed. Decree relating to partition of the properties shown in Schedule "B", "C" and "D" is hereby set aside. AppellantNo.1 and respondents No.1 to 5 are entttledfor l/^'share? on the properties shown in Schedule "A" and suft is decreed oothe foBewing terms:-' i) Respondents No.1 to 5 are not errtitled for partition ef the properties shown in Schedule "B", °C" and "D". /. •:ST'"^ ~^^ \ 'wV t1Q> ii) Appellant No.1 and respondents No.1 to 5 are entitted fer ; 1/6"' shares in the properties shown in Sdiedute "A". 18.The Court below shall send acopy of decree to the CoUector for effectmg partition of the agricutture land. Partition ofttie house shaltbe eff«*»lby appointment ofthe Commissioner. 19.Parties shall bear their own costs. 20.Advocate fees as per scheduie. — 21 .Decree be drawn up aecordingly. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge tv"f--.-