Partly allowed

Kishun Sah and Ors. v. Ganesh Sah and Ops

Patna HC22 Jul 2014FA/165/1967

Case brief

AI extract

What is this about?

A family partition dispute concerned acquisitions in one brother's name. The court partly allowed the appeal, excluding his self-acquired properties, including purchases after the father's death, from partition. Other joint-family properties remained partitionable. The plaintiffs' cross-objection failed.

What did the court decide?

Partition decree modified to exclude defendant no.1's self-acquired properties, including purchases after 1921 and properties covered by Exhibits A/35 and A/36.

Kishun Sah and Ors. Vs Ganesh Sah and Ops — Partition | Patna HC (2014)

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Patna High Court FA No.165 of 1967 dt.22-07-2014 1

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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First Appeal No.165 of 1967 (Against the judgment and decree dated 11.02.1967 passed by the 2^nd Additional Subordinate Judge, Chapra in Title Suit No.30 of 1959/16 of 1960). =========================================================== Narad Sao & Ors. .... .... Defendant nos.1 to 7-Appellants Versus Omprakash Sao & Ors. .... .... Plaintiffs-Respondents =========================================================== Appearance : For the Appellant/s : Mr. Gopal Jee, Advocate For the Respondent no.4 : Mr. Binod Kumar Singh, Advocate For the Respondent no.2(b): Mr. Ashutosh Jha, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO C.A.V. JUDGMENT Date: 22-07-2014

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The original defendant nos.1 to 7 had filed the First Appeal against the judgment and decree dated 11.02.1967 passed by the learned 2^nd Additional Subordinate Judge, Chapra in Title Suit No.30 of 1959/16 of 1960 whereby the trial court decreed in part the plaintiff’s suit for partition.

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The plaintiffs-respondents have filed a crossobjection under Order 41 Rule 22 C.P.C. against that part of the decree whereby the claim of the plaintiffs has been rejected.

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The plaintiffs-respondents filed the aforesaid suit claiming partition of the properties mentioned in the schedule of the plaint comprised in seven villages. According to the plaintiff, Misri

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Sah was the common ancestor of the parties who had two wives. Defendant no.15, Mostt. Asiya was the second wife who died during the pendency of the suit. Misri Sah had four sons namely Kishun Sah who is defendant no.1, Jaleshwar Sah, Hira Sah and Ganesh Sah. Ganesh Sah is the plaintiff no.1 and his heirs are plaintiff nos.2 to 6. The second son, Jaleshwar Sah is plaintiff no.9 and his heirs are plaintiff nos.7 to 10. The heirs of first son, Kishun Sah, defendant no.1 are defendant nos.2 to 7 whereas the heirs of third son, Hira Sah(defendant no.8) are defendant nos.9 to 14. The plaintiffs claimed initially 1/5^th share alleging that Misri Sah prior to his death in 1921 had acquired many landed properties out of the income from the joint family property and also family profession business of oilman which was joint family business and also out of his own earning. All his heirs were exercising possession over the entire joint family property. After his death, his four sons came in joint possession of all the properties and the defendant no.1, Kishun Sah being the eldest son was the karta. The joint family also acquired many properties prior to the separation between the four brothers. All the properties acquired either in the name of one person or the other are the joint family property acquired out of the joint family income. On the death of one agnate, Anup Sah leaving without any issue, his properties was divided between Misri Sah and others and in the said partition, the

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property was also allotted in favour of Misri Sah. In 1949-50, the four sons separated in mess dividing the moveable only. However, the joint family business was continued as joint. In addition to that, they have also opened their separate business. After 1949-50, the defendant no.1 mortgaged some lands of joint family in favour of defendant nos.23 to 26 which are without legal necessity. The land inherited by the parties from their maternal uncle in village Narainpur was sold by defendant no.1 in favour of defendant nos.18 to 22 which was also without legal necessity and is a furzy transaction. Likewise, the defendant nos.16 and 17 are either vendees or mortgagees from defendant no.1.

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After death of defendant no.15, the plaintiff claimed that her two sons are entitled to her 1/5^th share. Because the plaintiff has spent and performed the shradh of defendant no.15 and the defendant no.8 did not pay anything, he is also not entitled to any share unless he paid the half expenditure incurred by the plaintiff no.1, therefore, the plaintiff claimed by amendment 2/5^th share in the entire suit land.

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Many written statements have been filed by the defendants separately. The defendant nos.8 to 14 supported the plaintiff’s case. Their case in short is that Misri Sah had 2 bighas 18 kathas 16 dhurs ancestral land which are very fertile land and Misri

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Sah was doing business of oilman and was also running a shop, therefore, he had sufficient savings. When all the four sons grown up, they helped their father. The joint family also inherited 2 bighas 17 kathas 10 dhurs of land from the sasural family of Misri Sah as both the wives of Misri Sah were daughters of one person of village Narainpur. On his death, his property was inherited by their maternal uncle who gifted all his lands to his bhaginas but it was in the form of sale deed only in the name of defendant no.1. Family also inherited lands of 1 bigha 3 kathas 14 dhurs 1 dhurki from the property of Anup Sah on his death. Therefore, the joint family had sufficient income. The first wife had two sons namely defendant no.1, Kishun Sah and plaintiff no.9, Jaleshwar Sah. The defendant no.1 has opened many shops in the name of different members of the joint family which are not the personal business of any particular branch. They claimed only 1/5^th share in the entire joint family property. They claimed that the lands mortgaged by defendant no.1 be allotted in the share of defendant no.1 as it is not binding on others.

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The main contesting defendant nos.1 to 4 and 7 filed contesting written statement. Their case in short is that the two wives of Misri were not the daughters of one person. The first wife was daughter of Kuarchand Sah of village Pachraur who died when the defendant no.1 was infant, therefore, Misri Sah married with

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Mostt. Asiya who was daughter of Khedaru Sah of village Narainpur. Defendant no.1 is the only son of first wife whereas the other three sons are from second wife. After marriage of defendant no.1, there was quarrel between wife of defendant no.1 and the second wife of Misri. Therefore, Misri separated the defendant no.1 without giving any property saying that only after his death, the property will be partitioned among four sons.

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The further case is that the defendant no.1 had Rs.150 with him which he had got from sasural at the time of marriage and likewise, his wife had also Rs.300 with her. With the capital of this Rs.450, they started a grain and tobacco shop through which the defendant no.1 earned a lot and purchased lands from time to time. Subsequently, he started cloth business and earned good profits and also purchased many lands. All these acquired properties in the name of defendant no.1 are mentioned in Schedule I to the written statement.

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The further case is that in 1922, Misri Sah died and on his death, the lands were separated among the four brothers which were the lands of joint family. Schedule has been given in the written statement about the lands allotted in favour of the sons of Misri Sah. After partition, including the property inherited from Anup, the parties are coming in separate possession. These defendants further alleged

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that the lands of village Narainpur was sold by brother of Mostt. Asiya(second wife of Misri Sah) in favour of defendant no.1 by registered sale deed dated 08.08.1914 for Rs.400. The defendant no.1 purchased the same property out of his own earnings as such, it was his self-acquired property, therefore, subsequently, he sold the same to defendant nos.18 to 22 as he was in need of money. There was no joint family nor any joint family business is in existence nor the defendant no.1 was the karta. There is no unity of title and possession between the parties. All the properties acquired by defendant no.1 in his name are his self-acquired properties.

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On the basis of the above pleadings, the learned

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court below framed the following issues:

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I. Is the suit as framed maintainable?

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II. Have the plaintiffs any cause of action for the suit?

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III. Is the suit time barred?

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IV. Is the court fee paid sufficient?

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V. Is there any unity of title and possession between the parties? Is the defendant no.1 and his descendants separate from the plaintiffs since the time of their father?

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VI. Is the genealogy given by the plaintiffs correct?

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VII. Is any of the properties self acquired property of defendant no.1 from his personal money?

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VIII. Are the plaintiffs entitled to partition? If so, to what extent and in respect of which property?

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IX. To what relief if any, are the plaintiffs entitled?

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The learned trial court held that all the properties standing in the name of defendant no.1 are joint family acquisition, therefore, decreed the plaintiff’s suit for partition except the property purchased by the defendant no.1 in the year 1914 by registered sale deed from brother of Asiya holding that although, the property is joint family property which was sold by defendant no.1 for legal necessity. Against this finding regarding the property purchased in the year 1914, the cross-objection has been filed.

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The learned counsel, Mr. Gopal Jee appearing on behalf of the appellants submitted that the court below has wrongly applied the law against the defendants-appellants and held that the properties are joint family property. According to the learned counsel, out of his own money, the defendant no.1 has purchased the land in the year 1914 which was more than 2 bighas of land, therefore, the learned court below in spite of recording a finding that the ancestral land was not yielding so much that out of the savings, the property could have been purchased by the joint family held that Misri Sah might have business and out of that income, the property has been purchased in the name of defendant no.1. The admitted position is

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that Misri Sah died in the year 1921 and, therefore, defendant no.1 was not the karta. The learned counsel further submitted that according to the plaintiffs, brother of Asiya namely Supan Sah gifted the property to all his bhaginas which is a false case as registered sale deed is there. Supan Sah sold his ancestral property as well as the property acquired by him through settlement from ex-landlord. The finding of the court below that this property purchased by the defendant no.1 is joint family property is based on surmises and conjectures. The court below also did not consider the documentary evidences produced by the appellants in their right perspective.

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The learned counsel further submitted that none of the lands sought to be partitioned are standing in the name of any of the other family members. The onus was on the plaintiffs to prove that in fact, there was sufficient income from the joint family property and after savings, there was nucleus out of which the properties could have been purchased but no such evidence has been produced except the evidence that Misri Sah had 3 bighas 16 kathas 14 dhurs land and there were family business. It is further submitted that there were inter se transactions between the plaintiffs and the defendants as far back as in the year 1929 which indicates that there was partition between the parties. Many documentary evidences have been produced showing the fact that the parties were dealing the property

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independently since after 1913 till the institution of the suit which again supports the case of the defendants-appellants that there had been partition but on presumption only, the court below held that there had been no partition between the parties and the properties standing in the name of defendant no.1 are all acquired out of income of joint family property without there being any proof of nucleus.

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On the other hand, the learned counsel, Mr. Binod Kumar Singh appearing on behalf of the plaintiffs-respondents submitted that the court below has discussed in great details the evidences oral and documentary and thereafter clearly recorded the finding that the properties acquired by defendant no.1 right from 1914 till 1949-50 are the joint family acquisition, therefore, the findings of the court below needs no interference. The learned counsel further submitted that with respect to the property purchased by defendant no.1 from Supan Sah i.e. maternal uncle of the plaintiff was held to be the joint family property, therefore, the learned court below should have allowed the partition of the said property also but without there being any legal necessity wrongly held that the transfer was made for legal necessity as such, it is not available for partition. For this, the cross-objection was filed by the plaintiffs under Order 41 Rule 22 C.P.C. On these grounds, the learned counsel submitted that the First Appeal be dismissed and the cross-objection be allowed.

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In view of the above rival contentions of the

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parties, the points arise for consideration in this First Appeal is:

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I. Whether there is unity of title and possession with respect to the suit properties between the parties or there had already been partition as alleged by the defendants-appellants?

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II. Whether the properties standing in the name of defendant no.1 are joint family acquisition or it is self-acquisition of defendant no.1?

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Since both the points are inter-related, both the points are discussed and decided together. It is the case of the plaintiffs that Misri Sah had ancestral properties which were fertile and out of the income of the said properties, the properties have been acquired in the name of different family members as such, the acquisition made in the name of any particular member is not his selfacquired property rather it is joint family property. On the other hand, according to the defendant, after his marriage, his wife did not pull well with second wife of Misri, therefore, his father separated him in the year 1913. Defendant no.1 thereafter started grains and tobacco shop. Out of that income, he purchased the land of Supan Sah i.e. maternal uncle in the year 1914. Therefore, it is his self-acquired property. In support of the respective cases, both the parties have adduces their evidences oral and documentary.

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It may be mentioned here that this First Appeal is of the year 1967. The Lower Court records have been misplaced and in spite of best efforts made by the concerned staffs either of the High Court or the Lower Court, the records could not be traced. Therefore, the parties were directed to file the documents/depositions or pleading for reconstruction of Lower Court record. Accordingly, the appellants have produced all the relevant documents i.e. pleadings and the evidences for reconstruction of the Lower Court record. However, the documents are not available. According to the learned counsel for the parties, they have also got no copy of the documents. Therefore, the statements with regard to the documents mentioned in the judgment of the Lower Court are taken to be true and the case is being taken up for

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hearing.

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From perusal of the judgment, it appears that the cadastral survey record of right and revisional survey record of right have been produced which have been marked as Exhibit 22 series. As has been held by the learned trial court on the basis of Exhibit 22 series, father of Misri Sah got 1 bigha 4 kathas 3 ½ dhurs only. This cadastral survey record of right was finally published prior to 1908. The learned court below also considered the entry in the revisional survey record of right which are Exhibit 22(c) and 22(d) wherefrom the Lower Court found that Misri Sah got 3 bighas 16 kathas 14 dhurs

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land. This is the admitted position between the parties. None have disputed this fact. On the basis of the oral evidences, the trial court held that agricultural income of Misri Sah was insufficient to yield any surplus for making any acquisition vide paragraph 26. In view of this finding, which is based on oral evidence only, it is now admitted position that the joint family had no nucleus out of the ancestral land measuring 3 bighas 16 kathas 14 dhurs.

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According to Hindu law, when in a suit for partition a party claims that any particular item of the property is joint family property, the burden of proving that it is so rests on the party asserting it. To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the properties possessed by the family is joint family property or that it was purchased with joint family funds. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of court in the same way as any other fact i.e. by evidence. However, 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 shift to the party alleging

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self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family.” In the present case, as has been found above that the joint family ancestral property was not sufficient to form nucleus. In other words, there was no savings out of which the property could have been acquired.

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Now, in this light, let us examine the first acquisition made in the name of defendant no.1. It is admitted case that the registered sale deed is dated 08.08.1914 wherein Supan Sah, brother of Mostt. Asiya has sold his entire property to defendant no.1 for Rs.400. It is also admitted fact that subsequently the defendant no.1 has sold this property in the year 1944 to defendant nos.18 to 22. It may be mentioned here that during this period, Misri Sah was alive. The defendants-appellants had produced H(9), one Zarpeshgi executed by Supan Sah from which it was found that out of Zarpeshgi amount of Rs.250, the amount of Rs.125 was paid to the earlier Zarpeshgidar, Bundel Sah Kanu and the subsequent Zarpeshgidar Chatradhari paid only Rs.125. When defendant no.1 purchased the land by Exhibit A/35 dated 08.08.1914, the defendant no.1 paid the Zarpeshgi amount to Chatradhari. The defendant no.1 also produced Exhibits T/1 and T/2 in support of the fact that the Makfula dated 17.11.1911 was assigned by registered deed dated 06.12.1912 in favour of Dharichan(Ext.T/2) and the defendant no.1 paid Rs.100

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when the sale deed, Ext.A/35 was executed. Therefore, in view of these documents produced by the defendants, it is clear that the consideration amount was paid by defendant no.1 in the year 1914.

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The Hon’ble Supreme Court in the case of Prem Singh and others v. Birbal and others, 2006 (3) PLJR 179 S.C. has held that there is a presumption of correctness of the registered sale deed. The only case made out by the plaintiff regarding this acquisition is that Supan Sah was the maternal uncle of four sons of Misri Sah, therefore, Supan Sah gifted the property in the shape of registered sale deed. In face of the aforesaid evidences, including registered documents, this pleading and the evidence in support thereof adduced by the plaintiff cannot be relied upon. Therefore, the case made by the plaintiff that the lands of Supan Sah were inherited by all sons of Misri is not reliable. I, therefore, find that the property acquired by Exhibit A/35, registered sale deed dated 08.08.1914 by defendant no.1 from Supan Sah of village Narainpur is the selfacquired property of defendant no.1. The trial court also at paragraph 34 held that Exhibit A/35 was a real transaction of sale for consideration which nullifies the case of the plaintiff. Therefore, this finding of the trial court is hereby confirmed. It may be mentioned here that this land acquired through Exhibit A/35 is recorded exclusively in the name of defendant no.1.

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The defendant no.1 has produced Exhibit A/36 which is dated 05.08.1924. In support of his case that after revisional survey operation, Supan Sah i.e. maternal uncle had acquired some lands by settlement patta, Exhibit I/2 which he sold to defendant no.1 by registered sale deed, Exhibit A/36. D.W.15 is the defendant no.1 who has fully supported his case about this fact in his deposition.

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Exhibit H(8) is Zarpeshgi deed executed by Kishun Sah in favour of one Kaulesar Thakur for Rs.300 on 18.08.1944 and then again defendant no.1 executed another Zarpeshgi H/6 on the next day in favour of Sakaldeo Sah for Rs.700. From perusal of the judgment of the court below, it appears that the plaintiff no.1, Ganesh Sah has attested this document, Exhibit H/6. Son of Sakaldeo Sah has been examined as D.W.6 in support of this fact. Thereafter on 17.01.1947, the defendant no.1 has sold all these properties acquired through Exhibit A/35 and A/36 in favour of Sukan Sah and others by registered sale deed, A/34. In view of these facts, it is abundantly clear that these properties were acquired by defendant no.1 out of his personal fund and it was dealt with by him independently. It was also recorded separately in revisional survey record of right in his name alone.

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From perusal of the judgment of the Lower Court at paragraph 35, it appears that the trial court disbelieved the case of

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the defendant by observing as follows:

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“This plea of the defendant no.1 cannot be accepted in view of the findings given above that he had no business of his own and Misri Sah had considerable savings of his own. So, the acquisitions were made in the name of defendant no.1 on behalf of the joint family of Misri Sah and his sons but these lands were sold away by defendant no.1 in 1945 i.e. before the separation in mess and business amongst the descendants of Misri Sah, which according to the plaintiffs took place in 1949-50.”

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In my view, when the court below found that the registered sale deed of the year 1914 is in the name of defendant no.1 which is in fact a real transaction for valuable consideration which was exclusively recorded in the name of defendant no.1 in revisional survey record of right and the documents showing independent transaction by defendant no.1 with respect to this property wherein the plaintiff no.1(in one document) is also attesting witness, the learned court below approached the case in wrong angle and only presumed that because Misri Sah had business and out of that business there might have been income from which the property have been purchased by Misri Sah in the name of defendant no.1. It may be mentioned here that it is not the case of the plaintiff that in fact, the consideration amount was paid by Misri Sah to Supan Sah for

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purchasing the land. The only case put forth by the plaintiff with respect to this property covered under Exhibit A/35 and A/36 is that Supan Sah gifted the property to all his four bhaginas. Further, Exhibit A/35 is of the year 1914 whereas A/36 is of the year 1924. It is not the case of the plaintiff that in the year 1924 also, gift was made to all the four bhaginas.

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It is settled principles of law that the courts are required to find out the case pleaded by the parties and the court cannot make a third case vide (2008) 17 Supreme Court Cases 491=AIR 2009 Supreme Court 1103 . Here, the plaintiff’s case is that Supan Sah gifted the properties to four bhaginas but in the shape of sale deed whereas according to the defendant no.1, he has purchased the property out of his personal fund. The court below making out a third case that defendant no.1 had no business and Misri Sah had business, disbelieved the case of the defendant no.1 particularly when no evidence has been produced by the plaintiff to show that in fact, consideration amount was paid by Misri Sah. The other aspect of the matter is that the court below itself found that the property purchased by A/35 is a real purchase and for value, the consideration was paid by defendant no.1. This property is more than 1 bigha, therefore, now it becomes admitted fact that by the acquisition through Exhibit A/35, the defendant no.1 has been able to

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show his source of separate income. In such circumstances, it was the burden on the plaintiff to show that in fact, there was nucleus out of which, the property of the year 1924 through Exhibit A/36 was acquired but no such case been made out. As stated above, only the case is that the property was gifted by Supan Sah.

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In support of the fact regarding existence of business of Misri Sah is concerned, the plaintiff has examined P.W.8, P.W.9, P.W.10, P.W.12, P.W.14, P.W.15, P.W.17 and P.W.18. All of them have stated that Misri Sah used to run a shop for selling tobacco, salt and clothes. P.W.9 specifically stated that the name of shop was Misri Sah-Kishun Sah. On the other hand, D.W.1, D.W.5, D.W.7, D.W.10 and the defendant no.1 as D.W.15, all have denied the case of the plaintiff and stated that Misri Sah never had any business or shop either at his house or at Shankardih Bazar. D.W.15 in his evidence admitted that Misri Sah had purchased revisional survey plot Nos.1112, 1113, 1114 and 1120. The plaintiffs also produced Exhibit 7(a) and 7(c) which are mortgage deeds executed by different persons in favour of Misri Sah in the year 1919 i.e. dated 19.07.1919 and 21.07.1919 respectively. The court below at paragraph 28 regarding these Exhibits 7(c) and 7(a) observed that Exhibit 7(c) recites that the consideration of that Zarpeshgi was set off in part payment of a decreetal dues of Rs.300 which Misri Sah had obtained on 18.07.1912

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against mortgagor on Mahajani. Exhibit 7(a) recites that the consideration money of that bond was set off towards the dues against mortgagor under Bahi Khata. The learned court below also found that by virtue of registered sale deed dated 05.11.1915, 12.06.1918, Misri Sah acquired half share in plot no.1047 and entire land of plot no.1147 which are mentioned in the revisional khatiyan Exhibit P(1). In the said khata, Ganesh Sah, the plaintiff no.1 was shown on possession over 4 kathas 11 dhurs of plot no.1107. All these documents have been produced by the plaintiff in support of the fact that Misri Sah was also dealing with properties i.e. he was acquiring property by purchase and also by mortgage. All these documents show that these are either in the name of Misri Sah or in the name of plaintiff no.1. The court below himself held that Misri Sah acquired in mortgage the plot no.1107 and in the revisional survey, it is marked in possession of plaintiff no.1 who was then a baby of one or two years.

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In view of the above discussion of the evidences coupled with the documents, it appears that Misri Sah had also sufficient money by which he was purchasing property and also obtaining mortgaged deeds. The question is because Misri Sah had sufficient income, can it be presumed that the properties which are standing in the name of defendant no.1 have been acquired by Misri

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Sah? As stated above, when the joint family property had no income sufficient for acquisition, there cannot be any presumption that because Misri Sah had separate income, he had paid the consideration amount and purchased the property in the name of defendant no.1.

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Now let us consider about the family business. According to the plaintiff, in addition to the cultivation, Misri Sah had tobacco and clothes shop whereas the appellants pleaded that when he was driven out in the house, he started business of selling tobacco and clothes. D.W.15 who is defendant no.1 has stated that the name of his firm was Misri Sah-Kishun Sah. On the other hand, the plaintiff has examined the plaintiff no.1 himself who has stated that Misri Sah had business of clothes and grain under three firms namely, Misri RamKushun Ram, Jagarnath-Bishwanath and Hira Lal-Ganesh Lal. Out of the above three firms, Misri Ram-Kishun Ram was selling controlled clothes. This shop was wound up in the year 1944-45. D.W.1 who is defendant no.8 who supports the plaintiff’s case has in his deposition supported this fact stated by P.W.1. These are the oral evidences with respect to these firms.

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From perusal of paragraph 31 of the judgment, it appears that the court below has discussed the documentary evidences which are not available on record, therefore, as stated above, I perused the observation of the court below with regard to the documentary

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evidences. Exhibit 11 and 11(a) are the certified copies of the ordersheet of assessment in the year 1946-47 with respect to M/S Hira Lal Sah-Ganesh Lal. Exhibit 12(a) is the Hajiri filed by the defendant no.1 before sales tax officer whereas Exhibit 11(b) is the ordersheet with respect to M/S Jagarnath Pd.-Bishwanath Pd. in the year 1946. Exhibit 12 is Hajiri filed on behalf of firm by defendant no.1. Exhibit 13(a) is the order passed by Assistant Commissioner of sales tax. Exhibit 15 is the memo of appeal filed by firm against the order dated 24.10.1951 whereas Exhibit 16 is the vakalatnama executed by defendant no.1 for the firm Jagarnath-Bishwanath. The stock register of firm Hira Lal-Ganesh Lal of the year 1945 is Exhibit 1 whereas Exhibit 1(a) is stock register of the firm Jagarnath Prasad-Bishwanath Prasad. The plaintiff, P.W.1 in his deposition stated that the license of Misri Ram-Kishun Ram was cancelled in 1945 on the ground of irregularity complained by certain persons. Therefore, only two firms remained. From the above evidence, documents and oral testimony, it is clear that the two firms remained were under control of defendant no.1 and pairvis were done by him before the Sales Tax officer and Commissioner with respect to both the firms. The defendant no.1 in his evidence only denies his writing in the Bahi-Khata and stated that at the request of his brothers he was doing pairvi on behalf of both the firms. In view of the above facts and circumstances of the case, I find

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that two firms were the joint family firms. On behalf of the above firms, defendant no.1 was doing pairvi as such, it was joint family business. The finding of the court below on this question is

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confirmed.

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Now the acquisitions in the name of defendant no.1 are two types, the acquisitions which are made prior to 1921 i.e. prior to death of Misri Sah and the acquisitions made after death of Misri Sah. From perusal of the judgment of the court below at paragraph 36, it appears that the court below has enumerated the sale deeds Exhibit A(13) dated 09.11.1917, Exhibit A(18) dated 21.10.1918, Exhibit A(23) dated 20.12.1919, Exhibit A(10) dated 20.12.1919, Exhibit A(11) dated 20.12.1919 and Exhibit A(1) dated 29.05.1920. According to the plaintiffs, all these lands covered under the above sale deeds have been purchased by Misri Sah in the name of his eldest son, defendant no.1. Exhibit 7(a) is the Zarpeshgi dated 21.07.1919 executed by Lauher Raut in favour of Misri Sah. The court below on the basis of Exhibit 7(d), 7(f), Exhibit 19(a) and Exhibit 7(a) found that this property was also being dealt with by defendant no.1. The court below, therefore, concluded at paragraph 57 to the effect that it means that interest of Kishun Sah was not separate and distinct from that of Misri Sah during the period from 1913 to 1921. So, it is natural to expect that he might have been

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helping his father in his affairs. It is unusual that sale deeds were taken by Misri in the name of his eldest son, defendant no.1 as his other sons were minors.

¶108

It will not be out of place to state here that two firms were the joint family properties held as above and the income thereof was being utilized by the joint family. According to the defendant no.1, he purchased the lands out of his separate income from business. When it has been held above that he had no separate business, there is no question of separate income arises. In such circumstances, considering the evidences, the learned court below has rightly found that Misri Sah must have purchased the properties in the name of defendant no.1 out of the income from the said family business. It is not the case of the defendant that he had any other separate source of income.

¶109

In view of the above position, the properties covered under Exhibit A(1), A(10), A(11), A(13), A(18), A(23) ranging from 1917 to 1920 which are in the name of defendant no.1 are the joint family acquisition.

¶110

From perusal of paragraph 40, it appears that the Lower Court perused the other sale deeds which are after the death of Misri Sah in the year 1921. The details of Exhibit A series from the year 1924 to 1949 i.e. Exhibit A(36), A(16), A(14), A(26), A(24),

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A(2), A(27), A(15), A(3), A(4), A(19), A(20), A(8), A(7), A(21), A(22), A(17). All these sale deeds are in the name of defendant no.1 and all these sale deeds are after death of Misri Sah. According to the plaintiff, there was separation in mess and business in the year 194950 whereas according to the defendant no.1, there was partition just after the death of Misri in the year 1921. So far Exhibit A(16) dated 18.01.1923 is concerned, the defendant no.1 has produced Exhibit H(4), Zarpeshgi dated 04.06.1951 executed by him in favour of Raja Rai who has been examined as D.W.10. This document has been produced by defendant no.1 to show that he was dealing this property as his personal property. So far the sale deeds Exhibit A(14), A(15) and A(16) is concerned, the defendant no.1 in the compromise application himself has admitted that all the properties were in joint possession of the family. It is pertinent to mention that earlier compromise was recorded on the basis of compromise application. However, subsequently the said compromise decree was set aside and then partition suit was decided afresh by this impugned judgment. However, from perusal of the judgment, it appears that the trial court only on the basis of this statement made by the defendant no.1 in the compromise application held that the properties covered under Exhibit A(14), A(15) and A(16) are joint family properties. So far this finding is concerned, there is no evidence on behalf of the plaintiffs to

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show that these properties are also acquired out of the joint family income. It is specific case of the defendant no.1 that there was partition between the parties after death of Misri Sah. Exhibit A(25) is the sale deed by which defendant no.1 with Raktu Sah sold the property acquired by them jointly. This Exhibit A(25) is dated 26.02.1927. Thereafter, again defendant no.1 purchased the property by registered sale deed dated 22.01.1942, Exhibit A(26). Exhibit A(28) is the certified copy of the registered sale deed dated 19.05.1929 executed by defendant no.1 in favour of Hira Sah i.e. his brother. In this sale deed, another brother, Jaleshwar Sah identified Kishun Sah before the Registrar. Exhibit A(38) is certified copy of the registered sale deed dated 23.02.1959 which has been produced to show that subsequently Hira Sah sold the property which he has purchased through Exhibit A(28) from defendant no.1. Therefore, there is inter se transaction between the parties in the year 1929. Exhibit A(24) is registered sale deed dated 28.01.1927 executed by Mostt. Singesari and Mostt. Reshmi in favour of defendant no.1 and Raktu Sah. The said two vendors filed Title Suit No.221 of 1925 against Kishun Sah and Raktu Sah for setting aside the sale deed. Exhibit M is the certified copy of the judgment and Exhibit N is the decree by which the suit was dismissed. The court below disbelieved this case on the ground that brothers of Kishun Sah have not been

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added as party in the suit.

¶119

Exhibit A(2) is the sale deed in the name of defendant no.1 dated 11.04.1928. The defendant no.1 has executed Zarpeshgi deed Exhibit H(3) on 27.05.1948 which was subsequently redeemed by him. D.W.15 i.e. defendant no.1 in his deposition at paragraph 9 has stated that he got the rent reduction proceeding started and got the rent reduced from Rs.24 to Rs.12. To controvert this, the plaintiff also produced Exhibit 4 to show that rents were also paid through plaintiff no.1. The court below held that this acquisition is not acquisition of defendant no.1 because of the fact that rent receipt, Exhibit 4 has been filed by the plaintiff and D.W.12 has admitted in his evidence that the lands are in possession of the parties jointly.

¶120

Exhibits A(30) to A(32) are registered sale deeds dated 27.03.1952, 18.04.1952 which shows that the lands have been sold by defendant no.1 to purchasers who have been examined as D.W.10 and D.W.17. Exhibit A is a sale deed dated 14.10.1936 executed by plaintiff no.1 in favour of purchasers which he had already acquired earlier. Exhibit A(19) and A(20) are sale deeds dated 24.05.1939 and 03.06.1940 respectively as has been found by the trial court. It further appears that the defendant no.1 produced Exhibit F and G to G(2), notice under Land Registration Act, Exhibit

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J and J(1), the challans which are in the name of defendant no.1. Exhibits A(7) and A(21) are the sale deeds dated 16.04.1943 and 28.08.1943 respectively in the name of defendant no.1 and in the boundary of Exhibit A(21), the name of Ganesh Sah, the plaintiff no.1 has been mentioned.

¶124

The learned counsel for the appellants submitted that the inter se transaction between defendant no.1 and Hira Lal Sah coupled with the mentioning of name of plaintiff no.1 in the boundary of the land purchased by defendant no.1 through Exhibit A(21) proves the fact that plaintiff no.1 was separate when the properties were acquired and/or there was partition between the brothers otherwise there could not have been inter se transaction. The defendants also produced many Zarpeshgi deeds, Ext. H series to show that he was dealing with the properties independently treating the same as his selfacquired properties.

¶125

In view of the above discussion of the evidences, it is now become clear that the first acquisition made by the defendant no.1 in the year 1914 was his self-acquired property. The defendants failed to prove that out of the income derived from his separate business, he has purchased other lands prior to death of Misri Sah. The plaintiffs have been able to prove that there were two joint family firms. In such circumstances, the properties acquired in the name of

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defendant no.1 upto 1921 except the property covered under Exhibit A/35 are the joint family properties. The finding of the court below on this question is, therefore, confirmed.

¶129

So far the finding regarding joint family property with respect to the sale deeds in the name of defendant no.1 after 1921 i.e. after death of Misri Sah is concerned, it may be mentioned here that it is the specific case of the defendants that there was separation between them after 1921 by partition whereas according to the plaintiffs, they were separate in mess and business in the year 194950. From the documentary evidences, it is clear that Supan Sah by Exhibit A/36 sold his property to defendant no.1 in the year 1924 i.e. after death of Misri Sah. This property has been held above that it was the self-acquired property of defendant no.1. Plaintiff no.1, Ganesh Sah also acquired some property which he has sold. We have seen also inter se transaction i.e. defendant no.1 has sold lands to his own brother, Hira Sah who is defendant no.8. This defendant no.8 is supporting the plaintiff’s case regarding unity of title and possession. Exhibit A(28) is the sale deed executed by Kishun Sah in favour of Hira Sah. Therefore, there was inter se transaction between the brothers in the year 1929.

¶130

A Division Bench of this Court in the case of Ram Bahadur Nath Tiwary v. Kedar Nath Tiwari and others , AIR

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1977 Patna 59 has held that “separate transactions by members of a joint family may not by themselves establish separation, but mutual transactions between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation.” Another brother, Jaleshwar has identified Kishun Sah before the Registrar. If there was no separation between two brothers prior to the purchase by Hira Sah from defendant no.1 in the year 1928, there was no question of inter se transaction between them arises.

¶134

Another Division Bench of this Court in the case of Arjun Mahto and others v. Monda Mahatain and others , AIR 1971 Patna 215 it has been held that “the general principle is that every Hindu family is presumed to be joint but this presumption can be rebutted by direct evidence or course of conduct. When there is no contemporaneous documents are available the question whether the parties remained united or separate is to be decided on the facts of each case. The partition in such a case can be proved by the intention of the parties manifested by their subsequent conduct, by their sole and independent enjoyment of the properties.” In the present case, it is now admitted fact that the parties were acquiring the properties independently since 1914. The properties were dealt with independently by selling the properties treating the same as their

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exclusive properties. The defendant no.1 also acquired property separately. He also executed many Zarpeshgi deeds and acquired property by Zarpeshgi. The plaintiff no.1 also purchased property and he also sold the same in 1936. The parties also entered into mutual transactions as far back as in the year 1928. These conducts of the parties after death of Misri in the year 1921 shows that all four brothers were separate. However, the plaintiffs failed to prove that he was separated in the year 1913. In such view of the matter, all the properties purchased in the name of defendant no.1 are the properties of defendant no.1 purchased by him out of his own income. When there was separation between the parties, which would be evident from the fact that the parties were dealing separately since long after the death of Misri, there is no question of joint acquisition in the name of defendant no.1 arises. Even if it has been found that both the business firms are joint family business then also there cannot be any presumption that the brothers were not separate and that the properties in the name of defendant no.1 has been purchased by the income of that property particularly when the defendant no.1 has been able to prove his source of income i.e. acquisition of the land by Exhibit A/35 and A/36 in the year 1914 and 1924. Further, it appears that almost all the sale deeds are alone in the name of defendant no.1. It is also admitted fact that Misri had two wives. Although, the defendant no.1

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alleged that he is the only issue from first wife, he has failed to prove his case. Now, therefore, according to the plaintiff, second wife had two sons. It is not believable and it cannot be the human conduct that almost all the properties standing in the name of defendant no.1 were acquired out of the joint family income although, it is the case of the plaintiffs that the properties were acquired in the name of different brothers. No explanation has been given as to why none of the properties have been acquired either in the name of defendant no.8, plaintiff no.1 or plaintiff no.9 right from the death of Misri Sah till the institution of the suit. The only allegation made by the plaintiff is that defendant no.1 was the karta so, he acquired the property in his own name. It is settled principles of law that even if he is karta then also only because the properties are standing in the name of karta, there cannot be any presumption that it is the joint family property. In the present case, it is not a case of one or two acquisition but the acquisition is made after the death of Misri till the institution of the suit and for such a long period, if the properties were acquired only in the name of defendant no.1 but there was no objection from any quarter is not believable particularly when there were mutual transactions and independent transactions by the parties since long.

¶141

In view of the above discussion of the evidences, I find that all the acquisitions made after the death of Misri Sah by the

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defendant no.1 are the self-acquired property of defendant no.1 as he has been able to prove separation between the brothers after the death of father. The finding of the court below, therefore, on this question is hereby reversed and it is held that the lands purchased by the defendant no.1 after 1921 by registered sale deeds in his own name are not available for partition.

¶144

So far the cross-objection is concerned, I have already found that the defendant no.1 has purchased the land by Exhibit A/35 and A/36 which are his self-acquisitions, which he transferred by Exhibit A/34, the said properties are also not available for partition. Moreover, the same has already been sold by defendant no.1. Therefore, the cross-objection has also got no merit.

¶145

In the result, this First Appeal is allowed in part. The judgment and decree of the trial court is modified to the extent indicated above. The plaintiffs are entitled to partition of the properties which are not the self-acquired properties of defendant no.1. In the facts and circumstances of the case, there shall be no order as to costs.

¶146

(Mungeshwar Sahoo, J)

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Saurabh/-

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U T

Kishun Sah and Ors. v. Ganesh Sah and Ops

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Kishun Sah and Ors. v. Ganesh Sah and Ops

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