Patna High CourtRabindra Pratap Sharma vs Rajesh Kumar Sharma on 9 May, 2012Equivalent citations: AIR 2012 PATNA 163Author:Mungeshwar SahooBench:Mungeshwar SahooIN THE HIGH COURT OF JUDICATURE AT
                                                       PATNA

                               FIRST APPEAL No. 200 OF 1980


                          Against the Judgment and Decree dated 20.12.1979 passed
                          by Sri Birendra Kumar Sinha 5th Additional Subordinate
                          Judge, Siwan in title suit No.153 of 1970.

                          ====================================================
                          RABINDRA PRATAP SHARMA                         .......... Plaintiff-appellant
                                                                Versus
                          RAJESH KUMAR SHARMA & ORS.                     ......... Defendants-respondents
                          =====================================================
                                                    ********


                          Appearance :
                          For the Appellant     :     Mr. Shashi Shekhar Dwivedi, Sr. Advocate
                                                      Mr. Ranjan Kumar Dubey, Advocate with
                                                      him.
                          For the Respondent :        Mr. Anish Akhtar, Advocate
                          No.1 to 3                   Mr. Arifdaula Siddique, Advocate
                                                      Mr. Mehtab Alam, Advocate
                                                      Mr. Ashif Kalim, Advocate and
                                                      Mr. Rakesh Chandra, Advocate
                          ====================================================
     Dated : the 9thday of May, 2012


                                               PRESENT


                    CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO



                                    CAV JUDGMENT
Mungeshwar
              1.         The plaintiff-appellant has filed this First Appeal against the
Sahoo, J.impugned Judgment and Decree dated 20.12.1979 passed by Sri Birendra

             Kumar Sinha, the learned 5th Addl. Subordinate Judge, Siwan in title suit

             No.153 of 1970 dismissing in part the plaintiff's suit for partition.
 2        Patna High Court FA No.200 of 1980 dt.09-05-20122 / 182.         The plaintiff-appellant filed the aforesaid title suit No.153 of 1970

claiming partition of properties mentioned in Schedule I, II and III to the

extent of his 1/4th share.3.         The plaintiff claimed his share on the facts inter alia that Devi

Sharma had two sons, namely, Shyama Sharma and Raghubir Sharma. The

plaintiff and defendant No.1 2 and 3 are sons of Raghubir Sharma and

defendant Nos. 4 to 10 are sons and daughters and wife of Shyama Sharma.

Both the brothers, namely, Shyama Sharma and Raghubur Sharma had

separated in 1945.         The properties were also partitioned except ancestral

house which remained joint.              Shayama Sharma died in the year 1958.

Raghubir Sharma died in the year 1961 in jointness with the plaintiff and

defendant No.1 to 3. After some time of the death of Raghubir Sharma, the

plaintiff and defendant No.1 to 3 separated in family business but there was

no partition of the properties of Raghubir Sharma. However, the parties were

cultivating the lands according to their convenience.           The joint house at

Lucknow was occupied by tenants and the defendant No.1 was collecting the

rent on behalf of all the defendants and plaintiffs.        The defendant No.1 was

residing at Lucknow as he was in railway service.           For some time past, the

intention of the defendant No.1 has become bad and refuse to give true

account of collection of rent of Lucknow house, therefore, the plaintiff filed the

suit for partition. It may be mentioned here that the facts which are relevant

has only been mentioned here and the prior to history of genealogy is not

given.4.         The further case of the plaintiff is that the house built over plot

No.1037 and the land is also joint family property which was acquired and the

house was built with joint family fund. The name of wife of defendant No.1 is

simply benamidar.3            Patna High Court FA No.200 of 1980 dt.09-05-20123 / 185.             On being noticed, the defendant No.1 filed a separate contesting

written statement. His case in short is that he entered into railway service in

the year 1942 and posted at Lucknow. Out of his own earning, he purchased

two blocks of land with houses i.e., plot No.121 and 122 mentioned in

Schedule II of the plaint for consideration of Rs.2,000/- in the name of his

father, Raghubir Sharma because he was in Central Government service.

After purchase, he is living in the house and has also inducted tenants in

portion of the house. When he fell in need of money, he borrowed Rs.5,000/-

from Pancham Sahu and Makfula deed was executed by his father at his

instance. After that the loan was paid back by the defendant and got back the

deed.        Accordingly, the land and house at Lucknow on plot No.121 and 122

are the self acquired property of this defendant No.1.                   Neither Raghubir

Sharma nor the plaintiff nor the defendant No.2 and 3 have got any right in

the said property. The house at Lucknow on plot No.106 is the joint family

property which stands in the name of 4 brothers, i.e., the sons of Raghubir

Sharma.          So far house and land on plot No.1037 at village Kherai is

concerned, it is the self acquired property of his wife out of her kosila money

and, therefore, the same is her self acquired property. All other matters have

been admitted by this defendant.6.             On the basis of these pleadings of the parties, the learned Court

below framed the following issues :(i)           Is the suit maintainable as framed?
     (ii)          Is the suit barred by law of limitation, estoppel etc.?
     (iii)         Has the plaintiff got any valid cause of action for the suit?
     (iv)          Is there any unity of title and possession over that suit lands
                   between the parties?
     (v)           Does any of the parties possess self acquired properties not liable
                   for partition?
     (vi)          To what relief or reliefs the plaintiff is entitled to?
 4       Patna High Court FA No.200 of 1980 dt.09-05-20124 / 187.         After trial, the learned Court below recorded finding at paragraph 26

that the plaintiff has totally failed in proving that the properties i.e., the house

and land of plot No.121 & 122 at Lucknow was acquired by joint family fund

and the land pertaining to village Kherai of plot NO.1037 was also acquired by

joint family fund whereas the defendant No.1 has successfully established that

the said property at Lucknow was acquired by defendant No.1 out of his own

earning and that the property of village Kherai was acquired by his wife

Lalmuni Devi out of her own kosila money and the structure thereon was

constructed out of her stridhan. Accordingly, the suit has been dismissed with

respect to those properties and so far rest is concerned, the suit has been

decreed in part.8.         The learned senior counsel, Mr. Dwivedi appearing on behalf of the

appellant submitted that the learned Court below has not appreciated the law

in proper way and has applied the law in wrong way. According to the learned

counsel, the Court below has not considered the fact that the property at

Lucknow on plot No.121 and 122 is standing in the name of Raghubir Sharma

father of the plaintiff and defendant No.1 to 3. Therefore, the presumption is

that Raghubir Sharma was the owner of the property.                 After his death, the

property devolved on his 4 sons equally.                The learned Court below wrongly

placed onus on the appellant to prove the fact that the property was acquired

out of joint family fund. The onus was on the defendant to prove that in fact

he has acquired property in the name of father out of his own earning. It is

not the case of the plaintiff that the property of Raghubir Sharma was

acquired out of joint family fund.           So far the property at village Kherai is

concerned, admittedly, it is standing in the name of wife of defendant No.1.

The sale deed has been produced by the plaintiff and in fact the consideration
 5          Patna High Court FA No.200 of 1980 dt.09-05-20125 / 18amount was paid out of joint family fund. To prove the income of the joint

family, the parties have adduced evidence but the learned Court below did not

consider the evidences on right prospective. The learned Court below rejected

the evidences only saying that all these documents do not prove the joint

family fund and, therefore held that the properties of Lucknow on plot No.121

& 122 and the property at village Kherai are not joint family property.         On

these grounds, the learned counsel submitted that the impugned Judgment

and Decree are liable to be set aside.9.           On the contrary, the learned counsel appearing on behalf of the

respondent submitted that the defendant No.1 is in Government service since

1942 and was posted at Lucknow, therefore, he has purchased the property

on plot No.121 and 122 in the name of his father out of his own earning. His

father is benamidar and had no money to purchase the said property. Since

the plaintiff is claiming partition claiming the property to be joint family

property, the learned Court below has rightly placed the onus on him to prove

that the property is joint family property and unless he proves this fact that

the property is joint family property, it cannot be partitioned. So far property

at village Kherai i.e., plot No.1037 is concerned, admittedly, it is standing in

the name of wife of defendant No.1 and, therefore unless the declaration is

sought for that the property is the joint family property, the same cannot be

partitioned. The learned counsel further submitted that the learned trial Court

considered all aspects of the matter and then has recorded a finding. In such

view of the matter, the First Appeal is liable to be dismissed with cost.10.          In view of the above contentions of the parties, the points arises for

consideration in this appeal are :(i)         Whether there is unity of title and possession on the property at

                 Lucknow on plot No.121 & 122 between the parties or whether it
 6          Patna High Court FA No.200 of 1980 dt.09-05-20126 / 18is self-acquired property of defendant No.1 in the name of his

                 father, Raghubir Sharma.(ii)         Whether the property, i.e., plot No.1037 of village Kherai

                 standing in the name of Lalmuni Devi is her self-acquired

                 property or is joint family property and liable for partition.11.          Point No. (i) :- It is admitted fact that the properties on plot

No.121 and 122 is in the name of Raghubir Sharma, i.e., the father of the

plaintiff and defendant No.2 and 3. Raghubir Sharma died in 1961. The suit

has been filed in the year 1970 claiming 1/4th share in the said property by the

plaintiff. Since the property was purchased in the name of Raghubir Sharma

on his death, it will devolve equally on 4 sons according toHindu Succession

Actirrespective of the fact that whether it was purchased out of joint family

property or it was purchased by Raghubir Sharma out of his self income. The

defendant No.1 is claiming that he has purchased the property out of his own

earning.     In such circumstances, the burden is on defendant No.1 to prove

that in fact his father was benamidar.12.          From perusal of the impugned Judgment, it appears that the learned

Court below proceeded to decide this issue quoting the Hindu law to the effect

the burden is on the person who is claiming a share to prove that the property

was purchased out of joint family fund.                In the entire Judgment, the Court

below has considered this aspect as to whether the family possess some

nucleous to show that the house at Lucknow and Kherai have been acquired

out of the joint family fund. In my opinion, this approach of the learned trial

Court is entirely wrong approach. The joint family fund or nucleous is relevant

for the purpose of consideration regarding the purchase of property at village

kherai, i.e., plot No.1037 because it is admittedly purchased in the name of

wife of defendant No.1.             Therefore, the joint family fund or nucleous is
 7        Patna High Court FA No.200 of 1980 dt.09-05-20127 / 18relevant for this property only. So far property at Lucknow on plot No.121 &

122 is concerned, the plaintiff is not required to prove that it was purchased

out of joint family fund. As has been stated above, it is admittedly recorded in

the name of father of the parties.                 Since, natural succession is being

challenged by defendant No.1 alleging that his father was benamidar and it is

his self-acquired property, it is for him to prove this fact that in fact out of his

own earning, the property on plot No.121 and 122 were purchased by him.

Therefore, the burden is on defendant No.1 to plead about his income, about

his saving and to prove that out of this saving, he gave the consideration

amount of Rs.2,000/-.13.        Now let us consider the evidences adduced on behalf of the parties

in relation to the property at Lucknow on plot No.121 and 122.                 P.W.2 & 3

have stated that Raghubir Sharma was the karta and till date there has been

no partition of his property. P.W.5 has stated that Raghubir Sharma was the

karta.   P.W.11 who was tenant in the house at Lucknow has stated that

parties have two house at Lucknow. He claimed that Raghubir was his Phufa.

At paragraph 14, he had stated that his father was tenant for last 30 years.

P.W.12 also claimed that he was tenant in the house of Lucknow which is in

dispute. P.W.15 is the plaintiff himself. He has fully supported his case that

till his father was alive, he was karta.            All the properties are joint.   All the

properties which were acquired were acquired in jointness and all the brothers

have got equal share in the property of father.                 He has stated that the

property was purchased in the name of his father by ext.6/A and the

consideration amount was given by his father in presence of this witnesses

vide paragraph 6.       After death of father, the defendant No.1 was managing

the family as he was elder brother. At paragraph 16, he has stated that there

was 20 biggha ancestral land which was partitioned between Shayama Sharma
 8       Patna High Court FA No.200 of 1980 dt.09-05-20128 / 18and his brother, Raghubir Sharma in the year 1945.                 In that partition, 10

bigghas land was allotted to Raghubir Sharma.                 This sale deed has been

executed in favour of his father on 20th February, 1946 by Ram Khelawan. At

the time of registration, this witness had also accompanied to registry office at

Lucknow.     The sale deed has been proved, ext.6/A.             Admittedly, it is in the

name of father Raghubir Sharma. The only dispute is that the defendant No.1

is claiming that he has purchased this property out of his own earning in the

name of his father.       Therefore, the burden as started above is on him to

prove. The case of the plaintiff is admitted and according to law on the death

of Raghubir Sharma, the property will devolve on 4 brothers equally, if

defendant No.1 failed to prove his case.                   In the written statement at

paragraph 9, he has pleaded that he was employed in the year 1942 in railway

and out of his earning, he purchased the land and house on plot no.121 and

122 at Lucknow for Rs.2,000/-. He was in service, therefore, he got the sale

deed executed in the name of his father. This is only pleading regarding this

property.14.         D.W.18 is the defendant No.1. In his evidence, he has stated that

at Lucknow, he is employed since 1942. Out of his own earning, he purchased

the Lucknow property in 1946 the plot no. is 121 & 122. He claimed that he

has paid the money and got the sale deed executed in the name of his father

because he was in Government service and there was difficulty in obtaining

the sale deed in his name. He denied that the property was purchased out of

joint family property. He stated that his father has no saving out of cultivation

of joint family land. The sale deed has been produced from the custody of this

defendant.    From perusal of rest of evidence, it appears that he has only

stated about the possession and collection on rent etc. In the examination-in-

chief nowhere he has stated about his income, i.e., monthly salary and also
 9        Patna High Court FA No.200 of 1980 dt.09-05-20129 / 18the expenditure thereof and monthly saving.                 Since the onus is on him to

prove wherefrom he got this Rs.2,000/-, i.e. to consideration money, he is not

required to prove that his father had no income or that there was no joint

family income or nucleous nor the plaintiff is required to prove that the joint

family had nucleous. The burden is on the defendant No.1. In the pleading as

stated above and in the evidence discussed above except this statement that

he was employed in railway in 1942, there is nothing about his income or

salary and likewise there is nothing that how much he was saving per month.

Admittedly, the property has been purchased in February, 1945. In the cross-

examination at paragraph 38, he has admitted that he was employed as

Apprentice and his monthly salary initially was Rs.10/- till July, 1943.           The

salary was increased from September 1943 to Rs.33 till April, 1945.              D.W.4

has also admitted that Ramraj joined as Apprentice of salary of Rs.10/- per

month.    This D.W. 18 has also stated that his name has been mutated at

Lucknow municipality.15.        The learned counsel for the respondent submitted that in November,

1942, the defendant No.1 joined as Apprentice in railway and according to the

calculation as stated by D.W.18             in paragraph 38, the total income of the

defendant No.1 comes to Rs.2,178/- A written argument has also been filed

on behalf of the defendant-respondent.              The learned counsel submitted that

out of the said income, the consideration amount of Rs.2,000/- has been paid.

So far this submission is concerned, I will later on deal after perusing the

other evidences of the witnesses.              D.W.3 at paragraph 2 has stated that

Ramraj had purchased property from Ram Khelawan. D.W.4 has stated that

only Ramraj was in possession of property in question.                  D.W.5 claiming

himself to be a tenant had stated that he used to pay the rent to Ramraj. The

evidences of D.W.6 is also in the same line as that of D.W.5.               D.W.10 has
 10      Patna High Court FA No.200 of 1980 dt.09-05-201210 / 18stated that Rs.1000/- is given to vendor and at that time, Raghubir was not

present. D.W.11 and 12 are tenant in the house at Lucknow who have stated

that Ramraj was collecting the rent. D.W.13 is cousin brother. At paragraph

2 and 3, he has stated that Ramraj had purchased the property           of plot

No.1218122.      His other brothers have no concern with the property and

Raghubir had no fund.        This witness at paragraph 12 has admitted that the

second marriage of defendant No.1 was held in the year 1950.         The other

witnesses are on the acquisition of property of plot No.1037 of village Kherai.

These are the evidences on the point of acquisition of the property on plot

No.121 and 122.         No documentary evidence has been produced by the

defendant-respondent in support of his income and saving per month. There

is no pleading regarding monthly income and expense and saving.            The

witnesses have stated only that he was employed in railway as Apprentice on

monthly salary of Rs.10/- What was his monthly expense is not clear.

Admittedly, the family had no residential accommodation at Lucknow.

Therefore, the defendant No.1 was expected to have spent towards his

accommodation fooding, lodging transportation and clothing.        Nothing has

been explained by the defendant No.1 that how much he was spending on

these accounts and what was his saving per month. In view of this fact, the

submission of the learned counsel that on calculation of total income till the

date of purchase of the property comes to Rs.2,178/- is not acceptable for the

reasons that no account has been given regarding expenditure. It is not his

case that he got money from any other person.16.       In view of the above fact only on saying that he had purchased the

property in the name of his father or that he paid the consideration amount, it

will not be reliable. The evidence must be reliable evidence. Mere saying will

not do. The evidence must be acceptable.11      Patna High Court FA No.200 of 1980 dt.09-05-201211 / 1817.         The learned counsel for the respondent submitted that the property

has been mutated in the municipality. So far this submission is concerned, it

may be mentioned here that how the name of the defendant No.1 has been

mutated has not been brought on record. Admittedly, the property is in the

name of Raghubir Sharma. On his death, the property will devolve on his 4

brothers.    In such circumstances, there must be some basis or any order

passed by competent authority showing in what circumstances or on what

basis the name of defendant No.1 has been mutated in the municipality. Mere

mutation will not do.      In other words, only because in the municipality, the

name of defendant No.1 has mutated, he will not be declared as the owner of

the property exclusively.18.         The learned counsel for the defendant-respondent submitted that

the defendant No.1 is in exclusive possession of the property.       So far this

submission is concerned, admittedly defendant No.1 is employed at Lucknow.

It is admitted fact that family is joint. Therefore, possession of one brother

does not mean that other brothers were ousted. Since, he was only employed

at Lucknow, it is quite natural that he was residing there.     But it does not

mean that he became the absolute owner.19.         The learned counsel for the respondent submitted that the sale deed

was in custody of the defendant No.1-respodnent and he has produced the

same in the Court. No doubt while considering the case of benami, the Court

has to consider the ingredients like the possession of the property, the party

dealing the property and the custody of the title document. But here in the

present facts and circumstances of the case, it is admitted case that the title

deed is in the name of father, Raghubir Sharma. On the death of father, if the

title deed came to be possessed by one of the son, he cannot be allowed to

say that because he is possessing the sale deed he is real owner of the
 12      Patna High Court FA No.200 of 1980 dt.09-05-201212 / 18property. Admittedly, the property is situated at Lucknow. The sale deed was

registered at Lucknow.        The defendant No.1 is employed at Lucknow and is

residing in the house and, therefore, it is expected that he should be in

possession of the title deed also. Admittedly the other brothers including the

plaintiffs resides in Bihar but on these facts alone, there can be no

presumption that because defendant No.1 is residing at Lucknow and is in

possession of title deed, the property has been purchased by him out of his

own earning, particularly, when he is not disclosing as to how he managed to

pay Rs.2,000/- on the date of purchase of the property in the year 1946. The

main ingredients for considering the benami nature of transaction is passing of

consideration is to be proved by the person strictly who claimed to be real

owner. If he fails to prove the payment of consideration by him, merely on

the basis of possession of property or title deed, no finding can be recorded

that he is the real owner of the property or that he has paid the consideration

amount.20.          The learned counsel for the respondent submitted that the

defendant No.1 was residing with his uncle at Lucknow and, therefore, he was

not incurring any expenses vide paragraph 38 of D.W.15. It is admitted fact

that the defendant No.1 was employed in October, 1942 and the property had

been purchased in February, 1946. In such circumstances, particularly when

the defendant was employed the submission of the learned counsel for the

defendant is not acceptable that defendant No.1 was not incurring any

expenses or that he was not spending a farthing.           This one line explanation

cannot be accepted and it appears that merely because one witness is saying

an absurdity the Court cannot accept it as reasonable explanation.              This

explanation has been given only to patch up the matter that he saved entire
 13      Patna High Court FA No.200 of 1980 dt.09-05-201213 / 18income during this long more than 3 years. I, therefore, find no force in the

submission of the learned counsel for the respondent.21.       The documentary evidences produced by the defendant relates to

the possession of the property which is admitted by the plaintiff.           The

municipal receipts have been marked as ext. 'C' series.        Ext.C/6, ext.C/14,

ext.C/8 are municipal receipts standing in the name of Ram Khelawan. The

learned counsel for the respondent submitted that the tax have been paid by

the defendant No.1. Since the defendant No.1 was residing there, it is quite

natural that he was paying the tax and was obtaining the municipal receipts.

Likewise the ext. 'D' series are the water tax receipts. These documents only

proved that in the name of Ram Khelawan, the vendor of Raghubir Sharma,

the municipal tax or water tax were being paid by defendant No.1. Ext. 'R'

series are the counter foil of rent receipts. This also only proves that Ramraj

was collecting and granting receipts to the tenants.       As stated above these

documents also only prove that Ramraj was residing at Lucknow, therefore, he

was doing the management of the house and was inducting tenants. On these

basis, it cannot be said that he became real owner of the property as

admittedly neither the father nor the brothers of the defendant No.1 were

residing at Lucknow. On the basis of these documents, it cannot be said that

the title has been created in favour of the defendant No.1. Ext. 'I' series are

the correspondence between Ramraj and Municipal Board, Lucknow. As stated

above, these documents do not prove the benami nature of the transaction.

At best it can very well be said that the defendant No.1 was residing in

Lucknow. It may be mentioned here that it is the specific case of the plaintiff

that since defendant No.1 was residing at Lucknow, he was managing as he

was elder brother.14       Patna High Court FA No.200 of 1980 dt.09-05-201214 / 1822.        Regarding the mutation of defendant No.1 in the municipality is

concerned, the defendant has produced ext. 'M' series. It is admitted fact that

the property was in the name of Raghubir Sharma and all these ext. 'M' series

excluding some of them are after the institution of the suit.     Some of these

exhibits are prior to institution of the suit wherein name of Raghubir Sharma

has been mentioned and the payment of tax has been mentioned. As stated

above on the basis of these ext. 'M' series, which shows the payment of taxes

ect., it cannot be said that a title has been created on defendant No.1 or that

it can be recorded that he is the real owner of the property. At the cost of

repetition, I may mention here that the defendant No.1 must prove that he

has paid the consideration amount which he has failed to prove as discussed

above.23.        On the contrary, the plaintiff has also produced the rent receipt

ext.4 series which are in the name of Raghubir Sharma. It appears that the

learned Court below discarded these exhibits on the ground that holding

number and plot number has not been mentioned. It may be mentioned here

that it is not the case of the defendant that these exhibit 4 series do not relate

to the suit property. The plaintiff has also produced the inland letters written

by defendant No.1 either to his father or to the plaintiff. These inland letters

and post cards have been marked as ext.6 series. From perusal of some of

the letters, it appears that accounts was asked for about the rent of Lucknow

house and in connection with that there was strain relation. Ext.4/K has been

produced by the plaintiff to show that in fact the defendant No.1 was giving

account.24.        In view of the above discussion of the documentary evidences

produced by the plaintiff, it is clear that the defendant No.1 was giving

account about the rent collected by him.15      Patna High Court FA No.200 of 1980 dt.09-05-201215 / 1825.       From perusal of the impugned Judgment, the learned Court below

did not discuss at all these documentary evidences on the ground that these

documentary evidences do not prove joint family nucleous.26.       It is the case of the defendant that Makfula deed was executed by

his father at his instance regarding the property at Lucknow on plot No.121

and 122 when he was in need of money of Rs.5,000/-. The defendant No.1

repaid the said amount and got the Makfula deed. Therefore, it is admitted by

defendant No.1 that he was in need of money and his father executed Makfula

deed and, therefore, merely because he repaid the amount, it cannot be said

that he is the real owner. Admittedly till 1949, the first wife of this defendant

No.1 alive. No reason has been assigned as to why instead of purchasing the

property in the name of his wife, he claimed to have purchased the property in

the name of his father.        Nothing has been brought on record to show that

there was any bar in purchasing the property by government employee.27.       In view of my above discussion, I find that the defendant No.1 has

failed to prove his case that he purchased the property on plot No.121 & 122

at Lucknow in the benami name of his father, Raghubir Sharma. Therefore,

the finding of the learned trial Court on this question is hereby reversed. It is

held that the plaintiff is entitled for his share to the extent of 1/4th on the

house and land on plot No.121 & 122 at Lucknow, i.e., schedule II property.

This point is accordingly answered in favour of the appellant.28.       Point No.(ii) :- Admittedly, the sale deed in the name of wife of

defendant No.1 is of the year 1954.             It is admitted fact that the defendant

No.3(d) Lalmuni Devi was married with the defendant No.1 in the year 1950.

The consideration amount is Rs.250/- only.                 To prove the fact that the

property has been purchased by the joint family, the appellant have produced

witnesses and likewise the defendants have also produced witnesses to show
 16       Patna High Court FA No.200 of 1980 dt.09-05-201216 / 18that in fact the property was purchased by Lalumni Devi out of her own

money.29.        It may be mentioned here that during the life time of defendant

No.1 the wife of defendant No.1 has got no share in the joint family property.

Therefore, the plaintiff is claiming that Raghubir Sharma and his 4 brothers

who have only the title and interest over the joint family property purchased

the property in the name of a family members who has not title or interest. In

such circumstances, the plaintiff must first pray for declaration that the

property which is standing in the name of female member is benamidar of the

co-owner or the coparcener or joint family. No doubt, it is settled law that the

property can be purchased by the karta in the name of any of the joint family

member or in his own name but since in the present case, the property is

standing in the name of a lady who has no interest at all in the joint family

property or nucleous thereof during lifetime of her husband, the benami

nature has to be proved by the co-owners.30.        In the plaint, nothing has been pleaded as to why the property was

not purchased either in the name of karta or in the name of 4 male members

who were the coparcener or co-owner. Even if there was sufficient income in

the joint family and there was sufficient saving then also the father and his 4

sons were the exclusive owner thereof.                    In such circumstances, the joint

family has to prove firstly that the joint family purchased the property in the

benami name of Lalmuni Devi. The other aspect of the matter is that even if

the property has been purchased by the joint family then also the presumption

will be that the said property was purchased for the benefit of the defendant

No.3(d). Unless the joint family proved the fact that it was not purchased for

the benefit of wife of defendant NO.1, i.e., defendant No.3(d), the property

cannot be presumed to be joint family property.17       Patna High Court FA No.200 of 1980 dt.09-05-201217 / 1831.        In the present case, the defendant has examined the witnesses to

prove the fact that defendant No.3(d) had purchased the property out of her

own money.       D.W.8 Sukha Bhobi claiming himself to be labourer has stated

that he had worked in construction work of the house on plot No.1037 and the

payment was given by wife of Ramraj. D.W.10 at paragraph 3 has also stated

that the property is measuring 6 dhur belong to wife of Ramraj.                  D.W.14 is

own brother of defendant No.3(d). He has stated that his father was jeweler

and the defendant No.3(d) got gift at the time of marriage. She got Rs.500/-

in mukhdekhi. She also got khoicha money and out of the said money, she

purchased the property in question from Jamadar Singh and constructed

house.    This witness was there to manage the construction.                  In the cross-

examination, he has stated that at the time of Bidaigiri, Rs.1500/- was given

to his sister.   His sister is not pardanasin.              D.W.15 is Lalmuni Devi herself.

She has also supported the case that at the time of marriage, she got

Rs.1400/- - Rs.1500/- money in khoicha. In sasural also she got 400-500/- in

mukhdekhi.       She has further stated that she spent Rs.1400-1500/- in

construction. Her father has jewellery and grossery shop. D.W.18 has also at

paragraph 9 stated that his wife had purchased 6 dhurs land for Rs.250/-. At

paragraph 10, he has stated that his wife constructed the room over the said

land. At paragraph 11, he has stated that his father-in-law is rich and dealt

with in jewellery and grossery as well as agriculture and his wife got money in

mukhdekhi.32.        So far the evidences of the plaintiffs are concerned, they have only

tried to show that the joint family property had sufficient income. P.W.3 has

stated that the lands are fertile lands. Such is the evidence of P.W.4. P.W.10

has stated that he sold property to Raghubir Sharma for Rs.1500/-.                    Now,

therefore, even if the family had sufficient income or that Raghubir Sharma
        18        Patna High Court FA No.200 of 1980 dt.09-05-201218 / 18had sufficient income, there can be no presumption that the property

       purchased in the name of a female member has been purchased out of the

       joint family property. There is no pleading in the plaint regarding the income

       of the joint family and also the savings of the joint family. However, some of

       the witnesses have stated that in partition, Raghubir Sharma got 10 bigghas

       land whereas some of the witnesses stated that he got 5 bigghas land. On the

       basis of this evidence, there can be no presumption as stated above.              The

       plaintiff has also not prayed for any declaration that the property is held by

       defendant No.3(d) as benamidar of the joint family. On the other hand, the

       defendants have adduced reliable evidence to prove that defendant No.3(d)

       had sufficient money with her and out of the said money, she purchased the

       property in question and house was constructed thereof by her.33.         In view of my above discussion, I find that the defendants have

       been able to prove that the 6 dhurs land of plot No.1037 of village kherai is

       the self acquired property of Lalmuni Devi, the wife of defendant No.1. The

       finding of the learned trial Court on this point is, therefore, confirmed.34.         In the result, this appeal is allowed in part. The impugned

       Judgment and Decree are accordingly modified to the extent that the

       property on plot No.121 & 122 at Lucknow is joint family property and

       plaintiff is entitled for his share to the extent claimed. So far property

       over plot No.1037 of village kheria is concerned, the plaintiff has no

       right to claim for partition. In the facts and circumstances of the case,

       the parties shall bear their own costs.(Mungeshwar Sahoo, J.)

Patna High Court, Patna
The 9thMay, 2012
Sanjeev/A.F.R.