Law Web: Burden of proof is on plaintiff to prove that part of property is property of joint family after partition

Even from the legal aspect the plaintiff's stand in regard to Schedule C properties is untenable, His contention is that since the descendant of Shaligram Missir were members of a joint Hindu family, any acquisition even though in the name of one member will be deemed to be part of the hotch pot unless the person who claims it to be his exclusive property proves that this is so. This presumption is not applicable where there has already been previous partition between the parties. In such a situation the presumption would be otherwise namely that all joint family assets have been included for partition in the earlier suit and the burden lies on the person who claims that any left out property was also part of the joint family assets, to prove the same. This principle has been laid down in AIR 1981 Patna 111 (Ambika Devi v. Balmukund Pandey). The relevant passage from the above decision may be- quoted as follows : --

"The defendant 1st party as held above, has succeeded in proving the partition, as alleged by them. This being so, the presumption would be that all the properties of the joint family were divided and a person alleging that the joint family property, in the exclusive possession of one of the members after the pauition is joint and is liable to pe partitioned has to prove his case which the plaintiffs have signally failed to prove."

In the present case, undisputedly there were two earlier partition suits and therefore, legal presumption would be that the entire joint family assets were included in the earlier suits. Since the plaintiffs claim is that Schedule C properties though a part of joint family assets had been left out the burden clearly lies on him to establish that it was joint family property and had been wrongly left out. The evidence on record, as indicated above- clearly shows that the plaintiff has failed to discharge this burden. Hence both from the legal as well as factual aspect the plaintiff's case in respect of Schedule C properties has no substance at all.

Patna High Court

Ram Lakhan Missir vs Pandit Raghunandan Missir And ... on 5 October, 1988

Equivalent citations: AIR 1989 Pat 145

Bench: R N Prasad

1. This appeal arises out of a suit for partition. The plaintiff is the appellant. The relationship between the parties is shown in the genealogical table in schedule A of the plaint. The properties in which the plaintiff claims partition are shown in Schedules B, C and D of the plaint. The learned Subordinate Judge rejected the plaintiff's claim for partition and dismissed the suit.

2. The genealogical table given by the plaintiff in his plaint was not challenged by the defendants. Hence the genealogical table is given below to show the undisputed relationship between the parties : -- Schedule"A"

Deonath Missir

______________________________________________________________________________ Saligram Missir Akshyabat Missir Bigu Chakarpani Thakur ___________|________ _________|____ Missir Missir Missir | | | | | | | _____|_____ Parsuram Nini Nr Jadab Lachmi Nr Ram Pratap Mahadev | | | I Missir Missir Missir Missir (df.7) Missir | Gopinath Janar da

Missir (df.2) (plaintiff) (df. 10) Missi r

(df.1

3. The plaintiff's case briefly stated is as follows : --

Shaligram Missir alias Sagar Missir and his four brothers had joint ancestral properties and although there was no partition by metes and bounds they were in separate possession of different portions of the ancestral properties by way of convenience. They also lived separately from each other. The brothers after their mutual separation also acquired separate properties and were in separate exclusive possession of the properties so acquired by them.

4. On the death of Shaligram Missir on 12-5-1926 his share in the ancestral properties and his entire interest in his self acquired properties devolved upon his three sons Parshuram Missir, Nem Narayan Missir and Jadev Missir, and they cotinued to remain and from the joint family fundsalso acquired properties in the names of different cosharers and the same are mentioned in schedule B, C and D of the plaint. These suit properties are thus the joint properties of the descendants of Shaligram Missir. There has been no partition of these properties by metes and bounds and they have remained joint among the three branches of Shaligram Missir. Parshuram Missir died on 1956 as a result of which his entire interest in the joint ancestral as well as self-acquired properties as described in schedule B, C and D devolved upon his son Raghunandan, defendant 1 and two grandsons namely plaintiff and his brother Radha Govind defendant No. 2. Jadav Missir had died on 24-5-1927 and his interest in the suit properties devolved upon his two sons defendants 3 and 4 and two daughters defendants 14 and 15. The plaintiff's case further is that although parties were in possession of separate portions of land of the sake of convenience, the plaintiff continued to be joint with his father, brother uncle, cousins and cousin sisters and as defendant No. 1 father, and defendants 3, 4 and 5 were the elder male members in the family they used to deal with the joint family properties and the joint family funds and also take necessary steps in legal proceedings, The plaintiff however, found difficulty in continuing to remain joint with the other members of the joint family and hence he separated himself from defendants 1 and 2 on 1st April, 1974 and requested them to partition the joint family properties by metes and bounds and on account of their refusal he has to file the suit.

5. In his plaint, the plaintiff has referred to two earlier partition suits. He has stated that Sarju Missir father of defendants 10 to 13 (Sarju Missir's name appears to have been left out by mistake in the genealogical table) had filed title suit No. 2 of 1948 in respect of only some of the joint ancestral properties which had developed from the common ancestor Deonath Missir but those properties have not yet been partitioned by metes and bounds. He has referred to another title suit i.e. title suit No. 3 of 1948 filed by Basudeo Missir and Shrikant Missir (sons of Jadav Missir) and he has alleged that it was in respect of only some of the ancestral joint properties while deliberately leaving out other joint family properties, and even in this suit there has been no division by metes and bounds. Plaintiff has contended that in view of the fact that the aforesaid two suits did not cover all the joint family properties, he has now filed this suit in respect of the properties as detailed in schedules B, C and D. He has not, however, indicated as to what happened to those two suits. It is also stated in the plaint that Basudeo Missir sold some lands out of the joint properties described in schedules B, C and D and such sales made by him or the other defendants should be adjusted against their share in the partition. According to the plaintiff's case the suit properties (schedules B, C and D) are the joint properties of the descendants of Shaligram Missir, partly ancestral flnd partly self-acquired, and the plaintiff's claim is that he has l/6th share in the entire suit properties while defendants 1 to 5 along with defendants 14 and 15 have 5/6th share in the suit properties. He has grayed firstly for a preliminary decree and thereafter for division by metes and bounds by appointment of a Pleader Commissioner. It may be noticed that schedule B contains a list of immovable properties situated in the district of Gaya and Singhbhu. In schedule C are listed some lands and one Pucca house in the district of Mayurbhanj in Orissa. Schedule D contains a list of movable (utensils, furniture etc.) and two bullocks. The plaintiff's claim is that the movables described in Schedule D are under the charge of defendants 1 to 5 and as such also subject to partition.

6. On plaintiff's petition for amendment, three persons were added as defendants 16, 17 and 18. One of them Jainandan Missir son of Thakur Missir has been shown in the genealogical table. The addition of these persons as defendants appears to be in the context of the averment made in the written statement of contesting defendants 3 and 4.

7. The defendants 1 and 2, father and brother of plaintiff, filed a joint written statement fully supporting the case of the plaintiff and submitted that the properties should be partitioned according to the claim made in the plaint. It is also averred in their written statement that Nem Narayan Missir (brother of Parshu Ram Missir) had no self-acquired properties.

8. The suit was contested by defendants 3, 4 and 5. Defendants 3 and 4 filed a joint written statement while defendant 5 filed his written statement separately. However, the case put forward by all three of them is more or less similar and may be briefly stated as follows;

It is true that the ancestral as well as the self-acquired properties of Sagar Missir and his brothers were originally joint but as the members of the joint family could not continue to live together, two partition suits were filed as far back as in 1948, which also finds mention in the plaint, and both these suits have been decreed. Title suit No. 3 of 1948 related to all the properties movables and immovables of the branch of Shaligram @ Sagar Missir and these included all the properties which are mentioned in schedules B and D of the plaint of the present suit. In title suit No. 3 of 1948 plaintiff's father Raghunandan and Grand father Parshuram were defendants and after the suit had been decreed the plaintiff's father even filed an appeal in the High Court in which except for two items of properties of that suit, the decree for partition given by the trial Court was confirmed. That decree has been put in execution and for partition by metes and bounds has also been finalised but it is the plaintiff who has been putting obstruction in the work of the Pleader Commissioner in allotting the specific items to the parties. Since ail the properties mentioned in Schedules B and D of the plaint are covered by the decree of title suit No. 3 of 1948; the present suit for partition in respect of the same is not maintainable. The plaintiff and his father and brothers (defendants 1 and 2) are in fact joint and the father is Karta and only for the purpose of this suit the plaintiff has wrongly alleged that he is separate from his father and brother.

9. The case of the contesting defendant with regard to Schedule C properties is that they are the self-acquired properties of Nem Narayan Missir who had been living in the district of Mayurbhanj where he out of his own earnings acquired these properties. Defendant 5, Puran Missir is the adopted son of Nem Natyan Missir (which has been confirmed by a decree of the Court in title appeal No. 1 of 1964) and being the only heir of Nem Narayan and he is holding the properties of Schedule C exclusively and neither the plaintiff nor any of the defendants have any right or concern with these properties, Neither in title suit No. 2 of 1948 nor in title suit No. 3 of 1948 any party put forward the case that the Schedule C properties were the joint family properties of the descendants of Shaligram, Missir. Since plaintiff's father and grandfather were parties in the earlier partition suits and they did not put forward any claim to Schedule C properties in those partition suits, they are estopped from claiming now that is Schedule C is not the exclusive property of defendant No. 5 but joint family property and further their claim in regard to the same is also barred by res judicata. Neither the plaintiff nor his father or brother or any of: the other defendants have any interest in Schedule C properties. The plaintiff in the garb of a partition suit wants to rake-up matters which have already been settled in the earlier two partition suits. His claim in respect of Schedule C properties really amounts to a claim for declaration of title and recovery of possession for which he should file ad volerum court-fee and his claim in the garb of a partition suit is not at all maintainable.

10. As regards the movables of schedule D, the defendants have alleged that in fact they are in possession of the plaintiff and his father and brother and they are liable to submit the same for partition in accordance with the decisions in title suit No. 2 of 1948 and 3 of 1.948. The contesting defendants therefore, have urged that the plaintiff has no cause of action and his suit is fit to be dismissed with heavy costs.

11. The trial Court held that since it was established that the properties listed in schedules B and D of the plaint were also subject-matter of partition in title suit No. 3 of 1948 (Ext. B is the plaint of that suit), the present suit for partition in respect of schedules B and D property is barred by principle of res judicata and further barred under Order .2, Rule 2, C .P.C. As regards Schedule C properties the trial Court held that it was the self-acquired property of Nern Naryan Missir and on his death become exclusive property of defendant No. 5 and the plaintiff or other defendants had no interest or title in the same and as such the suit for partition in respect of Schedule C property is also not maintainable. In view of these findings he dismissed the suit in its entirety.

12. The following points were raised on behalf of the appellant at the time of hearing of this appeal;

(i) Even if the schedules B and D properties were included in the earlier partition suit (title suit No. 3 of 1948). but'since partition and delivery of possession in accordance with the same has not been effected, the present suit even though a subsequent suit for partition cannot be barred and the principle of res judicata or the bar of Order 2, Rule 2, C.P.C. will not operate.

(ii) The Court below has erred in holding that Schedule C properties were the exclusive or self-acquired properties of Nem Narayan Missir and that.it should have held that it was joint family property in respect of which the present suit is maintainable.

13. I now deal with the first point raised on behalf of the appellant. The appellant does not dispute that Schedules B and D properties were also the subject-matter for partition in title suit No. 5 of-1948 and that preliminary decree was passed in that suit which was also confirmed in appeal by the High Court. It has been contended 6n his behalf that in spite of the same there has not yet been division by metes and bounds and delivery in accordance with such division has not yet been effected. The argument is that since joint title and possession in spite of decree in earlier tide suit is still continuing. the plaintiff cannot be forced to remain in a state of such jointness and as such he has right to seek partition through a subsequent suit. In support of this contention the plaintiff has relied on the case reported in v. In that case the earlier partition suit had ended in a compromise decree on 5th Jan., 1929 and as a dispute cropped up regarding nature of some of the lands which ultimately was determined by another suit, the preparation of the final decree got some what delay and the final decree was sealed and signed on the 7th Jan., 1939. When execution was levied, some of the judgment-debtor raised objection Under Section 47, C.P.C. and it was ultimately held that the decree had become barred by time. Under such circumstances the partition suit decree cold not be given. effect to. Thereupon the plaintiff filed a subsequent suit for partition and it was contended that it was not maintainable as it was barred by res judicata. After discussing the various decision on this point. Their Lordships observed that;

"a cosharer has got a right to seek fresh partition if for some reason the previous decree for partition beomes unenforceable so that there has not been actually breaking up of the title and possession of the cosharer by actual delivery to each of them of the specific portion of the joint property allotted to him by that decree".

Their Lordships were of the view that as matter of principle every cosharer had a right to seek complete severance from the other and so long as actual delivery of possession of the property allotted to him does not take place, the complete severance cannot be said to have been affected. In this context their Lordships made the following observations :--

"This principle follows from the fundamental concept of joint ownership and possession giving each joint owner a right to transform the joint ownership and possession into several and independent ownership and possession, but this transformation cannot in the eye of law be held to have been brought about unless and until the entire process of transformation starting from the ascertainment of the share of each joint owner and ending in the actual delivery to him of the property given to him forming his share of the joint property, has been gone, through: so long as this does not take place, the title and possession of all the cosharers continues to be joint."

14. The learned counsel for the respondents has submitted that the principle laid down in the above decision has no application to the present case. There is no dispute that the final decree of title suit 3 of 1984 has already been put into execution. In fact in the written statement of defendants 3 and 4 and also in the written statement of defendant 5 there is a clear assertion that in title suit 3 of 1948 order has already been passed for division of the property by metes and bounds but the Pleader Commission, deputed for effecting such division has not been able to do so on account of obstruction put by the plaintiff and his father. The contention of the plaintiff appellant is merely that the decree passed in title suit No. 3 of 1948 has not yet been enforced but he has not contended that the decree has became unenforceable on any ground. So the final decree passed in title suit No. 3 of 1948 may still be enforced and indeed should be enforced, so as to effect thedivision by metes and bounds and delivery of possession to the different co-sharers in accordance with the same. That being the position, it is clear that the principle laid down in AIR 1959 Patna 331 has no application to the present case. Indeed, certain observations made in this case go against the appellant. After their Lordships enunciated the principle as indicated in the quotations mentioned above, they further observed that the position would be quite different if it was shown that the person seeking fresh partition is quilty of preventing directly or indirectly the completion of the previouspartition by actual delivery of the properties allotted to each co-sharer. In other words, if the person who seeks subsequent partition is found to be responsible for obstructing the finalisation of the actual division of the joint properties by metes and bounds and delivery thereof, he has no locus standi to come forward with a subsequent suit for partition on the ground that the earlier partition decree has not yet been enforced. The plaintiff deposing as P.W. 7 has admitted that the Commissioner had several times gone to effect Takhata-Bandi in respect of the decree of partition suit of 3 of 1948. His plea however, is that since Commissioner has tried to effect Takhatbandi only in respect of the properties of Chaibasa hence he (plaintiff) and his father and brother have been preventing Commissioner from effecting the division and Takhtabandi. Thus there is admission on the part of the plaintiff that he and his father and brother have obstructed the Pleader Commissioner from effecting Takhtabandi. His plea for such obstruct ion is obviously not tenable. The Schedule C properties were not the subject-matter of title suit No. 3 of 1948 and hence whatever may be claimed of the plaintiff in respect of the same, this could be no ground for the plaintiff or his father or brother to obstruct the Pleader Commissioner from effecting division of the properties which were the subject-matter of title suit No. 3 of 1948. Obviously therefore the plaintiff and his father and brother are the persons who put obstruction in bringing to finality the partition decree passed in title suit 3 of 1948 and if they are allowed to prosecute the present partition suit in respect of the Schedules B and D property it will only mean that they are being encourage to take advantage of their own wrongful Conduct. Thus even according to decision of AIR 1959 Patna 331, the present suit for fresh partition in respect of schedules B and D properties are not maintainable. The finding of the trial Court in this respect if, therefore, confirmed.

15. I will now deal with the plaintiff's claim for partition of Schedule C properties. It was urged on behalf of the appellant that the learned trial Court has wrongly observed that the present suit for partition of Schedule C properties was barred by constructive res judicata inasmuch as this property also ought to have been included in the earlier suits for partition between the parties. The argument is that if for any reason the co-sharers have left out certain joint family property in the earlier suit for partition, the co-sharers cannot subsequently be forced to remain joint in respect of the same and be without any remedy in effecting severance of the joint title and possession and as such there can be no constructive res judicata for a fresh suit for partition of property which was left out in the earlier suit for partition. I find no difficulty in accepting the validity of this argument. But the real question is whether Schedule C property was in fact joint family property and it had been mistakenly left out in previous partition suit.

16. It was urged on behalf of the appellant that the admitted case of the parties is that the descendants of Shaligram Missir were originally joint and all the properties were held by them as members of joint Hindu family and any acquisition, even if it be in the name of one of the co-sharers, must be deemed to be part of the joint family property unless the person, who claims it to be self-acquired and exclusive acquisition, proves to the contrary. The argument, therefore, is that even if the Mayurbhanj properties have been only in the name of Nem Naryan Missir, they must be presumed to be joint family property unless it is proved otherwise. Before such a presumption can arise it has to be established, firstly that there was a nucleus of the joint family and secondly that the nucleus was such as to yield and provide income for acquisition of other properties for the joint family. No doubt the plaint of title suit 3 of 1948 as also Schedule B of the present suit, indicate that the joint family held certain lands and this could provide a nucleus. However, it is clear that the joint family was quite big and there were several persons to be supported from income of the joint family property as it then existed. There is nothing to show that the nucleus was able to yield such income which could be invested for acquisition of properties in Mayurbhanj district in Orissa, for the joint family. In absence of proof of this fact, the presumption as suggested by the plaintiff-appellant cannot arise.This is settled law and thisprinciple has been laid down even in the cases cited by the appellant himself namely AIR 1957 Patna 644 (Janki Sao v. Commr. of Income-tax) and AIR1965SC289(K. V. Narayanaswamilyer v. K. V. Ramakrishna Iyer).

17. I have perused fully the evidence of the plaintiff who is P.W. 7. He has not said a word on the point that the joint family lands held by the descendants of Shaligram Missir were capable of providing income for acquisition of properties in Rairangpur and other places in the district of Myurbhanj in Orissa. In his examination in chief, he merely stated that it is not correct to say that the Rairangpur property belong exclusively to Puran Chandra defendant 5. As such his evidence in support of his assertion that Schedule C properties, though standing in the name of Nem Narayan Missir, were part of the joint family hotchpot is nil. He has however cross-examined on this point in course of which he has stated that the Rairangpur property had been acquired by Nem Naryan Missir 30 to 40 years ago and that it is Nem Narayan Missir who has continuously paid rent for these lands. He has also stated that on the lands so acquired, Nem Narayan Missir built two houses and used to live in the same and part of it and also been let out by him on rent. Now if the Rairangpur properties were acquisition of the joint family, there is no reason why Nem Narayan Missir alone should have paid rent for the same. The plaintiff does not say that the rent paid by Nem Narayan was out of the joint family income; so Nem Narayan was paying the rent on his own. Again it is difficult to believe that Nem Narayan would construct two houses on the lands so acquired if these lands were part of joint family property. The plaintiff does not say that the houses which Nem Narayan constructed were so done by joint family funds. He has said that it was Nem Narayan who has constructed these houses which obviously means that Nem Narayan did so from his own funds. He would not have done so and would not have invested his own money in constructing the house if the lands were of the joint family. Again the plaintiff has not said that the rent which was being realised by Nem Narayan from the tenant of the house was ever made available to the joint family. If the acquisition at Rairangpur had been for the joint family, there is no reason why the rent income from the house should not have been made available to the joint family. The plaintiff has not also stated that any member of the joint family ever made any demand that Nem Narayan Missir should share the rent of the house with other members of the joint family. Thus, his own evidence clearly indicates that his claim that the Rairangpur properties acquired in the name of Nem Narayan Missir were joint family properties lacks substance. The contesting defendants have asserted that the plaintiff's grandfather who was defendant in the two earlier partition suits of 1948 never put forward the contention that Mayurbhanj properties were also part of the joint family assets and never urged that the same should be included in the earlier partition suits. On death of Parshuram Missir during the pendency of the earlier partition suit, plaintiffs father Raghunandan Missir was substituted therein and it appears that he filed a petition stating that he was adopting the written statement of his father Parshuram Missir. When questioned on this point the plaintiff accepted that in the earlier partition suit all the joint family properties had been included except the property of Rairangpur. He has also admitted that on the death of his grandfather, his father Raghunandan Missir was substituted in his place in the suit. He does not say that even Raghunandan Missir made any objection to the non-inclusion of Schedule C properties in the earlier suits. This leaves no room for doubt that the cosharers have acted on the basis that the Schedule C properties were not part of the joint family assets and on that account these properties were not included in the earlier partition suits. It is significant to note that defendant No. 1 Raghunandan Missir who was party in the earlier partition suit has not come forward as a witness in this case to deny the defendant's assertion that the cosharers had knowingly not included Schedule C properties in the earlier partition suit because they accepted the position that it was not part of the joint family assets and that it was separate and exclusive property of Nem Naravan Missir. Thus, the plaintiff's own evidence is sufficient to negative his case in respect of the Schedule C properties.

18. There is specific evidence from the side of the defendants on this point. The trial Court has discussed the evidence in detail and there is no need to repeat the same. In this context. 1 may refer only to the evidence of D.W. 1, Basu Deo Missir who is defendant No. 3 in the present suit. If the Sch. C properties- are held to belong to the joint family of the descendants of Shaligram Missir. obviously Basudeo Missir and his brother will stand to the benefit as they will get share in the same, D.W. 1 has clearly stated that the entire properties of Orissa were the personal properties of Nero Narayan Missir and the descendants of Parshuram Missir or Jadav Missir have absolutely no interest in the same. This evidence of D .W. I is therefore, against his own interest Why would he give such evidence supporting the case of defendant 5 in respect of Schedule C properties if really it is not correct. Plaintiff has not alleged nor there is any material on record to show that there is any collusion between defendants 3 and 4 on one side and defendant No. 5 on the other. The evidence also shows that after acquisition, the properties of Rairangpur and other places in Orissa were mutated in the name of Puran Chandra Missir and there is nothing to show that any of the descendants of Shaligram ever raised any objection to the same. The evidence on record and the facts and circumstances of the case thusleave no room for doubt that the Schedule C properties situated in Rairangpur district Myurbhanj were self-acquired property of Nera Narayan Missir to which either the plaintiff or any other descendant of Shaligram Missir cannot have any claim. The trial Court has, therefore, rightly come to the finding that the plaintiff's claim for partition in respect of Schedule C property is baseless.

19. Even from the legal aspect the plaintiff's stand in regard to Schedule C properties is untenable, His contention is that since the descendant of Shaligram Missir were members of a joint Hindu family, any acquisition even though in the name of one member will be deemed to be part of the hotch pot unless the person who claims it to be his exclusive property proves that this is so. This presumption is not applicable where there has already been previous partition between the parties. In such a situation the presumption would be otherwise namely that all joint family assets have been included for partition in the earlier suit and the burden lies on the person who claims that any left out property was also part of the joint family assets, to prove the same. This principle has been laid down in AIR 1981 Patna 111 (Ambika Devi v. Balmukund Pandey). The relevant passage from the above decision may be- quoted as follows : --

20. In conclusion. 1 hereby hold that the plaintiff's claim for partition in respect of the suit properties is not maintainable. The trial Court has rightly dismissed the suit. I find no merit in this appeal a nd as such dismissed the same with costs. Hearing fee Rs. 64/-.

SUBMITTED BY;

chandan awasthi

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Tuesday, 30 July 2013

Burden of proof is on plaintiff to prove that part of property is property of joint family after partition

chandan awasthi

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