Dismissed

Bishnu Thapa and Ors. v. Khem Bahadur Thapa

Gauhati HC9 Sept 2019RSA/166/2008

Case brief

AI extract

What is this about?

In this second appeal, the court upheld the joint lower courts' finding that suit land purchased in the plaintiff's name and registered under the Dayabhaga school of law was his self-acquired property. The court held that the burden to prove joint family status and income usage lay on the defendants, who failed to adduce evidence. A claimed relinquishment deed was found unrelated to the specific s

What did the court decide?

Second appeal dismissed; judgment and decree of lower courts upholding plaintiff's sole title to the suit land affirmed.

Bishnu Thapa and Ors. Vs Khem Bahadur Thapa — Partition | Gauhati HC (2019)

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Page No.# 1/8

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GAHC010004512008

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 166/2008

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1:BISHNU THAPA and ORS

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2: DADHIRAM THAPA

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3: LALBAHADUR THAPA

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ALL SONS OF LT. KARNA BAHADUR THAPA ALL RESIDENTS OF NIZBASTI MOUZA-BORBHAGIA PS. JAMUGURI DIST. SONITPUR ASSA

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VERSUS

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1:KHEM BAHADUR THAPA

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@ KHEM BAHADUR CHETRY, S/O LT. KARNABAHADUR THAPA, R/O VILL. NIZBASTI, MOUZA-BORBHAGIA, PS. JAMUGURI, DIST. SONITPUR, ASSAM.

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Advocate for the Appellants : MS.B CHOUDHURY

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Advocate for the Respondent : MR.S C BISWAS & MR. A. IQBAL.

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Page No.# 2/8

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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JUDGMENT & ORDER (CAV)

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Date : 09-09-2019

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This second appeal by the defendant is against the judgment and decree dated 12-08-2008 passed by learned Civil Judge, Sonitpur in T.A.No. 20/2007, whereby the learned Civil judge concurring with the finding of the learned Munsiff, decreed the suit of the plaintiff in T.S. No. 15/2000.

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The respondent herein, as plaintiff, filed a suit (T.S. No. 15/2000) for declaration of title, recovery of possession and permanent injunction. The case of the plaintiff was that he purchased the suit land measuring 6 bigha 12 lechas covered by dag No. 727(old)/237(new) and patta No. 215 and 262 (old)/282 (new) by registered sale deed No. 1014 dated 24-04-1976. The plaintiff also purchased 1 bigha 10 lechas of land covered by dag no. 724(old) 236(new) of P.P. No. 103 by registered sale deed No. 10216 dated 17-05-1976 and took possession of both the lands. The plaintiff entrusted the defendants being his own brothers to look after the said land. However, in the year 1994, when the plaintiff asked the defendants to vacate the land for his own use and occupation, they requested the plaintiff to allow them to cultivate the land for 2/3 more years and promised to vacate the same. However, when the plaintiff requested the defendants to vacate the land again in the year 1998, they refused to vacate the suit land and hence the suit was filed. The pleaded case of the defendants, was that the suit land was purchased by the father of the plaintiff and the defendants in the name of the plaintiff, out of the family income contributed by all the members of the family, and as such, the plaintiff was not the exclusive owner of the suit land. Actually the suit land was the joint family property, whereupon the plaintiff did not have any exclusive title. It was also the case of the defendants that the plaintiff relinquished his right over the suit land by accepting Rs. 90,000/- from the defendants and therefore, the plaintiff did not have any right, tile and interest over the suit land. On the basis of the above pleadings, learned trial court framed the following issues :-

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Whether the suit is maintainable in its present form ?

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Whether the suit is barred by limitation ?

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Whether the suit is bad for non-joinder of necessary parties ?

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Whether the plaintiff has right, title and interest over the suit land ?

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Whether the plaintiff is entitled to a decree for permanent injunction ?

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To what relief or reliefs , if any, the plaintiff is entitled to ?

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Page No.# 3/8

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Both the parties adduced evidence and after hearing both sides, learned Munsiff decreed the suit in favour of the plaintiff.

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Aggrieved, the defendants preferred the appeal; in T.A. No. 20/2007 and the learned first appellate court also concurring with the finding of the learned trial court decreed the suit of the plaintiff and dismissed the appeal. Hence, the present second appeal, which was admitted to be heard on the following substantial questions of law : -

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Whether both the courts below committed an error in declaring and confirming the suit land to be self acquired property of the plaintiff and not a joint family property ?

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Whether both the courts below erred in law in failing to consider the exhibit-‘G’ and in deciding the question of the nature of the suit property ?

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I have heard Ms. B. Choudhury, learned counsel for the appellants and Mr. A. Iqbal for the respondents.

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Learned counsel for the appellants submitted that both the courts below failed to take into account the evidence brought on record, which clearly proved that the plaintiff and defendants were living in a joint family during the life time of their father. The learned counsel for the appellant placing reliance on a decision of the Apex Court in P.Leelavathi (D) by LRS-Vs.- Shamakarnarayana Rao (D) by LRS, MANU/SC/0497/2019, contended, that when the parties were living in a joint family and defendants were in possession of the suit property, learned court below ought to have presumed that the property was the joint family property, even though, it was purchased in the name of the plaintiff. Mr. Iqbal, learned counsel for the respondents contended, that when the suit properties were purchased by the plaintiff by registered sale deed and the execution of the sale deed in favour of the plaintiff was not disputed, there was usually a presumption of title in favour of the ostensible owner, in whose name the property stood and there could not be any presumption that the property was the joint family property. In support of his submission, learned counsel, Mr. Iqbal placed reliance on a decision of the Apex Court in D.S. Laksmaya and Anr. Vs. L. Balasubramanium and Anr. (2003) 10 SCC 310.

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Pleaded case of the plaintiff is that the suit land was purchased by him and he is the exclusive owner of the property. In support of his case, the plaintiff adduced both oral and documentary evidence, which included the Ext. 1 and 2 being the sale deeds, Ext. 4 and 5 being the certified copy of the jamabandi and Ext. -6 being the patta. All these documentary evidence clearly established that

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Page No.# 4/8

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the suit land was purchased by the plaintiff in his name. Subsequently, his name was mutated and patta was also issued in his favour. Therefore, evidently and admittedly the plaintiff was the ostensible owner of the suit property. Whereas, the defendants have come up with a plea, that though, the plaintiff was the ostensible owner, he was not the real owner of the property, rather, suit land was the joint property of all the sons and daughters of late Karna Bahadur Thapa, as, according to the defendants, the suit land was purchased by their father, Karna Bahadur Thapa, in the name of the plaintiff being the eldest son, out of the joint family income.

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The materials on record shows that the plaintiff by adducing evidence clearly established that the suit property was purchased by him out of his own income and all the documentary evidence clearly established that the plaintiff is the ostensible owner of the property. Admittedly the plaintiff and the defendants are sons of Late Karna Bahadur Thapa. The defendants admitted in their evidence that at the time of execution of the sale deeds, exhibits 1 and 2 in favour of the plaintiff, they were minor of 3/4 years of age. In cross-examination, the plaintiff stated that during the life time of his father, they were living in the same family jointly. He also stated in his evidence, that after death of their father, Karna Bahadur Thapa, their eldest brother was living separately and rest of the brothers were separated after the death of their father. On the basis of the evidence of PW1 (plaintiff), that the children of Karna Bahadur Thapa lived together in the same family during the life time of their father, learned counsel for the appellant contended, that it was a joint family and therefore, the courts below ought to have presumed that the property was joint family property, purchased out of income of the joint family. While rejecting the claim of the defendants that the suit property was purchased out of the income of the joint family, the courts below held that the defendants were minor of 3/4 years at the time of purchase of the suit land, and therefore, there was no question of defendants contributing any income to the joint family mess. It was also contended by the learned counsel, that on the basis of the said evidence, the learned court below ought not to have discarded the plea of the defendants with regard to joint family property, inasmuch as, it is not necessary, that all members should contribute to the income of the joint family. This contention of the learned counsel for the appellant is untenable for the simple reason, that there is no presumption of a property being a joint family property, merely on account of existence of a joint family. Therefore, even if it is assumed for the sake of argument that all the children of Karna Bahadur Thapa were living together during the life time of their father, that per se, would not be sufficient to establish or to raise a presumption, that the suit property was joint family property.

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Admittedly the parties in the instant case are governed by the dayabhaga school of law. The concept of coparcenery property or joint family property under dayabhaga law is quite different from

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Page No.# 5/8

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the Mitakshara school. Under dayabhaga system, sons do not constitute coparcenery or joint family with the father. Therefore, even in case of the property, which was inherited by the father from his ancestor, he remained in the position of an absolute owner, as in the case of self acquired property. Therefore, under the dayabhaga law, when the sons do not constitute a joint family or coparcenery with the father, there is no presumption that a property purchased by a son in his own name during the life time of the father is a joint family property. Therefore, the burden of proof to establish the property to be joint family property, in such case lies on them, who deny the ownership of the son or another member of the family, who is the ostensible owner. The settled proposition of law therefore, is that the ostensible owner shall be presumed to be the owner of the property, unless the contrary is proved by the party, who alleges that the ostensible owner is not the real owner.

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This Court, in Parneswar Das and Ors. Abharsharam Boj and Ors.. AIR 1976 Gauhati 24, where the issue was as to whether the suit property was ‘benami’ property, held in para 11 as under :-

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“11. The normal law is when a person is the ostensible owner of property he is presumed to be its real owner. When land is purchased by a registered deed in the name of a person the presumption is that he is the real owner of the land as well as ostensible. If a person alleges that the ostensible owner is not the real owner, the burden is upon him to prove that the ostensible owner is not the real owner. When a plaintiff brings a suit on the allegation that though the suit land stands in the name of the defendant and was purchased in his name, it was a benami purchase and the real owner is the plaintiff, the burden is upon him (plaintiff) to prove it. He is to prove it by cogent evidence beyond reasonable doubt that he is the real owner. it is not sufficient for the plaintiff to create a mere doubt in the mind of the Court that the ostensible owner may not be the real owner, or that the ostensible owner is real owner is doubtful.”

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Though the authority deals with a claim under benami transaction, the principle is equally applicable in the present case.

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The Apex court, in D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. (supra) dealing with similar situation held as under :-

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“The legal principle, therefore, is that there is no presumption of property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being a joint family property and the onus would shift on the

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Page No.# 6/8

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person, who claims it to be self acquired property to prove that he purchased the property with his own fund and not out of joint family nucleus that was available”.

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When normally the presumption of ownership is in favour of the ostensible owner, it is the burden of the parties, who claim to the contrary, to prove that the ostensible owner is not the real owner. Such presumption is obviously rebuttable like any other presumption. As observed by the Apex court in in D.S. Lakshmaiah’s case, the presumption in favour of the ostensible owner can be rebutted by showing, that joint family had sufficient income or possessed sufficient nucleus, by which the suit property could be purchased. Once the defendants brings on record some cogent evidence to show that the joint family had sufficient nucleus, by which the property could be purchased, the presumption in favour of the ostensible owner may stand rebutted and onus may shift on the ostensible owner to prove that the property was self acquired. Though the brothers and sisters may constitute a joint family under the dayabhaga law, which is no doubt different in nature, from the joint family or coparcenery under Mitakshara School. No evidence was brought on record to show the existence of a joint family or of the joint family source of income or that the joint family possessed sufficient nucleus. Therefore, unless the defendants, who claimed the property to be a joint family property, adduce evidence to prove, that there was some joint family resource or income, out of which the suit property could have been purchased, court cannot presume the property to be joint family property in the face of the evidence, clearly establishing the plaintiff to be the owner of the suit property. Since no evidence was brought on record to show that there was any joint family nucleus in the form of any income or resource of the joint family, merely because the plaintiff and defendants lived together in the same family during the life time of their father, no presumption would arise, that the suit property was joint family property.

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The plaintiff having proved his right, title and interest over the suit land by adducing sufficient evidence, both oral and documentary and the defendants having failed to adduce any iota of evidence to rebut the presumption in favour of the plaintiff or to prove that the suit property was purchased from the income of the joint family nucleus, both the courts in my considered view, rightly held that the plaintiff was the exclusive owner of the suit property and the same was not a joint family property. This apart, whether the suit property was the joint family property or the self acquired property of the plaintiff being a question of fact and such question of fact having been decided concurrently by both the courts below, the said concurrent finding of facts is not amenable to second appeal. For the reason stated above, the substantial question no. 1 is answered accordingly and decided in favour of the plaintiff/respondent.

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Page No.# 7/8

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The defendants proved a document alleged to be an unregistered deed of relinquishment and marked as Ext.-‘G’. It was the case of the defendants in the written statement, that the plaintiff relinquished his share in the paternal property by taking Rs. 90,000/- and executing Ext-G, being the purported deed of relinquishment. The contention of the learned counsel for the appellant, that both the courts below failed to appreciate the Ext-‘G’, while deciding the nature of suit property and declaring the title of the plaintiff over the suit property. The Ext.- G, proved by the defendants being an unregistered document shows, that the plaintiff with the intention to live separately received Rs. 90,000/- as paternal property and also undertook not to raise any objection/claim in respect of paternal property. As already indicated above in the substantial question of law No. 1, that the suit property was not the paternal property, rather, it was the exclusive property of the plaintiff purchased by him. Therefore, even if it is assumed for the sake of argument, that the plaintiff by accepting Rs. 90.000/- relinquished his share in the paternal property, by executing the exhibit-‘G’, the purported deed of relinquishment, such deed (Ext.-‘G’) has nothing to do with the suit land, which is held to be the exclusive property of the plaintiff purchased by himself and therefore, both the courts below rightly rejected the Exhibit-‘G’, which was apparently no way related to the suit property involved in the instant case. Therefore, the findings of the learned courts below that exhibit–‘G’ has no relation with the suit property cannot be faulted. Accordingly, the substantial question of law No. 2 is also answered in negative and decided against the defendants/appellant.

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In view of the decision and answers to the substantial questions of law, as above, this regular second appeal appears to be without merit and accordingly dismissed. Judgment and decree passed in T.S. No. 15/2000 by the Munsiff and affirmed by the first appellate court is hereby upheld.

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Parties to bear their own costs.

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Send back the LCR.

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JUDGE

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Page No.# 8/8

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Bishnu Thapa and Ors. v. Khem Bahadur Thapa

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Bishnu Thapa and Ors. v. Khem Bahadur Thapa

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