‘C’ Schedule property was blended with the joint family property and
treated as part of the joint family property. To consider the issue, it
is profitable to discuss the law on this point. The decision in the
case of Ram Janam Singh –v- Stae of Uttar Pradesh and
another, reported in AIR 1994 SC 1722, enumerates the doctrine of
blending as follows:
6. To pronounce on the question of law presented
for our decision, we must first examine what is the
true scope of the doctrine of throwing into the
“common stock” or “common hotchpot”. It must be
remembered that a Hindu family is not a creature
of a contract. As observed by this Court in
Mallesappa Bendeppa Desai v. Desai Mallappa9
that the doctrine of throwing into common stock
inevitably postulates that the owner of a separate
property is a coparcener who has an interest in the
coparcenary property and desires to blend his
separate property with the coparcenary property.
The existence of a coparcenary is absolutely
necessary before a coparcener can throw into the
common stock his self-acquired properties. The
separate property of a member of a joint Hindu
family may be impressed with the character of joint
family property if it is voluntarily thrown by him
into the common stock with the intention of
abandoning his separate claim therein. The
separate property of a Hindu ceases to be a
separate property and acquires the characteristic of
a joint family or ancestral property not by any
physical mixing with his joint family or his
ancestral property but by his own volition and
intention by his waiving and surrendering his
separate rights in it as separate property. The act
by which the coparcener throws his separate
property to the common stock is a unilateral act.
There is no question of either the family rejecting or
accepting it. By his individual volition he
renounces his individual right in that property and
treats it as a property of the family. No longer he
declares his intention to treat his self acquired
property as that of the joint family property, the
property assumes the character of joint family
property. The doctrine of throwing to the common
stock is a doctrine peculiar to the Mitakshra School
of Hindu law. When a coparcener throws is
separate property into the common stock, he
makes no gift under Chapter VII of the Transfer of
Property Act. In such a case there is no donor or
donee. Further no question of acceptance of the
property thrown into the common stock arises.”
In Lakkireddi Chinna Venkata Reddi and others Vs.
Lakkireddi Lakshmama, reported in AIR 1963 SC 1601, the
decision describes the principles of doctrine of blending as follows:-
“9. Law relating to blending of separate property
with joint family property is well-settled. Property
separate or self-acquired of a member of a joint
Hindu family may be impressed with the character of
joint family property if it is voluntarily thrown by the
owner into the common stock with the intention of
abandoning his separate claim therein: but to
establish such abandonment a clear intention to
waive separate rights must be established. From the
mere fact that other member of the family were
allowed to use the property jointly with himself, or
that the income of the separate property was utilised
out of generosity to support persons whom the
holder was not bound to support, or from the failure
to maintain separate accounts, abandonment cannot
be inferred, for an act of generosity or kindness will
not ordinarily be regarded as an admission of a legal
obligation.
Thus, to sum up the
principles decided in the aforesaid decisions, it can be said that in
order to establish that the separate or self-acquired property of a
coparcener is blended with a joint family property following
ingredients have to be established.
1. There must be a coparcenery joint family in
existence;
2. Property in question must be separate or self
acquired of a Hindu coparcener;
3. He allows such property to be used by joint
family;
4. Such action of the coparcener must be out of his
own volition;
5. He must have an intention of waiving,
surrendering and/or abandoning his claim of
separate rights over such property.
HIGH COURT OF ORISSA: CUTTACK
F.A. NO. 82 OF 2000
Rama Chandra Prusty Vs Bidyadhar Prusty and others
Date of Judgment: 11.12.2015
P R E S E N T:
SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa
K.R. Mohapatra, J. This appeal has been filed assailing the judgment and
decree dated 24.01.2000 and 11.02.2000 respectively passed by the
learned 1st Additional Civil Judge (Senior Division), Cuttack in T.S.
No.15 of 1979. During pendency of the suit, the original plaintiff, 2
namely, Rama Chandra Prusty died and his legal heirs (the
appellants herein) were brought on record who prosecuted the suit.
2. The suit was filed for a decree for partition of schedule
‘B’, ‘D’ and ‘E’ properties of the plaint as per the compromise petition
filed by the plaintiff, defendant Nos. 2, 3, 4, 11, 13, 14 and 15 and
also for a decree holding that the entire ‘C’ schedule property is the
exclusive property of the plaintiff. The plaintiff further prayed that in
case ‘C’ Schedule property is held to be joint family property of Rama
Chandra Prusty (the original plaintiff) and his deceased father
(defendant No.1), namely, Bidyadhar Prusty and the same being
homestead property, the plaintiffs have got a right to repurchase the
same under Section 4 of the Partition Act through the process of
Court.
3. One Krushna Prusty was the common ancestor, who
died leaving behind three sons, namely, Kartika, Panu and
Banchhanidhi. B’ schedule property was the ancestral properties of
the parties in which surviving members of each of the three branches
had 1/3rd interest. Nidhi and Bidyadhar, the sons of Kartika,
effected a partition of movables in the year 1932 in which Bidyadhar
had got some cash and five mahan of bell metals and they separated
themselves in mess, but the family of defendant No.1, namely,
Bidyadhar remained joint. Bidyadhar-Defendant no. 1 was the Karta
of the family. Defendant No.1 acquired ‘C’ schedule property with a
thatched house thereon from out of joint family nucleus, more 3
particularly from the cash and movables he got in partition. Though
‘C’ schedule property was acquired in the name of Bidyadhar, the
same was treated to be the joint family property as Bidyadhar
amalgamated the same with ‘B’ schedule property. As the ancestral
dwelling house was in a dilapidated condition, the defendant No.1,
his wife Suma and the plaintiff moved to the newly purchased house
situated over ‘C’ schedule property and stayed therein till 1955 when
the house collapsed due to heavy rain. Thereafter, the defendant
No.1 and other family members came back to the ancestral house
after making some repairing therein and the ‘C’ schedule property
was being used as ‘Bari’ (kitchen garden). There was an open latrine
over the ‘C’ schedule property which was being used as such by the
family members. Defendant No.2, namely, Makara, the natural
brother of the plaintiff, immediately after his birth was given in
adoption to Kokila, the daughter of Banchhanidhi. After the death of
the adoptive parents, defendant No.2 started residing with defendant
No.1 over ‘B’ schedule properties. Subsequently, the plaintiff and
defendant No.1 constructed a pucca house over ‘C’ schedule
property. Defendant No.1 in order to deprive the plaintiff from his
share over ‘C’ schedule property sold the same to defendant No.10, a
stranger to the joint family, without any legal necessity. Such sale
was nominal and sham transaction. When the said fact came to the
knowledge of the plaintiff, the plaintiff demanded partition to which 4
Bidyadhar turned a deaf ear. Hence, he filed the suit for the
aforesaid relief.
4. Defendant Nos. 1 and 2 filed joint written statement, but
subsequently they did not contest the suit. Defendant No.10 filed his
written statement denying the plaint allegations and stated that ‘C’
schedule property originally belonged to one Moti Bewa and
defendant No.1 had entered into an agreement to purchase the same
from her. When said Moti Bewa did not execute the sale deed as
agreed upon, defendant No.1 filed the suit for specific performance of
contract in the Court of Ist Munsif, Cuttack. The suit was decreed in
favour defendant no.1 and the sale deed was executed in his favour
through Court vide registered sale deed dated 21.05.1934.
Accordingly, the ‘C’ schedule property was recorded exclusively in the
name of defendant No.1 in the Major Settlement. Defendant No.1 for
his legal necessity sold the ‘C’ schedule property in favour of
defendant No.10 after obtaining due permission under the provisions
of Urban Land Ceiling Act and from Khasmahal authority. Defendant
No.10 also specifically denied the allegation that ‘C’ schedule
property was purchased out of joint family nucleus. It was the
specific case of defendant No.10 that the ‘C’ schedule property was
the self acquired property of defendant No.1 which he had purchased
out of his own income and he was in exclusive possession over the
same. Thus, defendant No.1 contended that the prayer for
repurchase under Section 4 of the Partition Act could not be granted
in favour of the plaintiff. He further contended that the suit was not
maintainable without a prayer for declaration of title and possession.
Thus, he prayed for dismissal of the suit.
5. During pendency of the suit, defendant No.1, namely,
Bidyadhar Prusty died and his name was deleted vide order dated
07.02.1992. Similarly, names of defendant Nos. 5 to 9 were also
deleted vide order dated 21.02.1992 as they had no interest in the
suit property. During pendency of the suit, the plaintiffs effected
compromise with defendant Nos. 2 to 4 and defendant Nos. 11 to 15
vide order dated 13.05.1992 in respect of other properties involved in
the suit except ‘C’ schedule property. In the said compromise,
Schedules-‘B’, ‘D’ and D/1 were partitioned and the plaintiffs were
allotted Schedule ‘X’ property mentioned in the compromise petition.
Likewise, defendant Nos. 2 to 4 and 14 and 15 got ‘Y’ schedule
property mentioned therein. It was also admitted in the said
compromise that defendant No.2 was not adopted by Kokila and he
was the son of defendant No.1. Defendants 11 to 13 did not claim
any share in the suit properties out of their own volition. Part of ‘B’
Schedule property purchased by defendant No.1 from one Nidhi was
treated to be joint family property and was accordingly partitioned as
per the terms of the compromise. Similarly, ‘D’ schedule property
purchased in the name of Suma (wife of defendant no.1) after her
death became the joint family property and was partitioned as per
the terms of compromise. However, terms of the compromise 6
specifically revealed that the plaintiff will continue the suit as against
defendant No.10 in respect of ‘C’ schedule property only and other
defendants would not lay any claim over the same. Thus, in view of
the compromise recorded as aforesaid, the only dispute remained to
be decided in the suit was in respect of ‘C’ schedule property between
the plaintiffs vis-à-vis defendant No.10.
6. Taking into consideration the rival pleadings of the
parties, learned Civil Judge framed as many as eleven issues, out of
which Issue Nos. 4, 5 and 7 are vital for consideration in this appeal
which are quoted hereunder :-
“4. Whether Bidyadhar Prusty (dead Defendant No.1)
purchased the ‘Schedule ‘C’ property out of the
joint family fund/movables and cash which he got
in the partition with his brother in the year 1932?
5. Whether the ‘C’ schedule property is the self
acquired property of Bidyadhar?
7. Whether the ‘C’ schedule property was blended
with the joint family property and treated as part
of the joint family property?”
7. On a reading of the pleadings in the plaint, it is manifest
that the plaintiffs claimed ‘C’ schedule property to have been
acquired from joint family nucleus and claimed partition of the same.
In the alternative, they contended that in case ‘C’ schedule property
is held to be self-acquired property of Bidyadhar, the same was
thrown to the joint stock to be used by the member of the joint family
and it had lost its character of being exclusive property of defendant 7
No.1. Further, defendant No.10, the purchaser of ‘C’ schedule
property being a stranger, the plaintiff had a right to repurchase the
same under Section 4 of the Partition Act. Thus, in the aforesaid
backdrop, the pleadings and materials available on record are to be
assessed to consider as to whether the appellants are entitled to the
relief sought for.
8. Mr. R.K. Mohanty, learned Senior Advocate appearing for
the appellants referring to para-6 of the plaint submits that there
was a partition between Nidhi and Bidyadhar in the year, 1932 in
which cash and immoveable fell to the share of Bidyadhar (defendant
no. 1). The defendant no. 1 was looking after the family as Karta and
had negligible extent of homestead land in ‘B’ Schedule property
which was insufficient. Thus, the defendant no.1 acquired ‘C’
Schedule property from out of the joint family nucleolus by utilizing
the cash given to him in the partition made in the year, 1932. A
thatched house was standing over the suit land. Originally ‘C’
Schedule property was owned and possessed by one Moti Bewa, who
had entered into an agreement with the said Bidyadhar to sell the
property. When Moti Bewa failed to perform her part of contract,
Bidyadhar (defendant no.1) filed a suit for specific performance of
contract before the court of learned 1st Munsif, Cuttack and by virtue
of the decree passed in the said suit, ‘C’ Schedule property was sold
and recorded in his name and delivery of possession was given to
him. After purchase, said defendant no. 1 thrown the ‘C’ Schedule 8
property to the joint stock voluntarily. As a matter of fact, the
ancestral dwelling house of the joint family was in a dilapidated
condition for which the defendant no. 1, his wife Suma and his son
(original plaintiff) moved to the newly purchased house situated over
‘C’ Schedule property and stayed there till 1955, when the house
collapsed due to heavy rain. Thereafter, they came back to the
ancestral house after making necessary repairing and ‘C’ Schedule
property was being used as Bari (Kitchen Garden) and open latrine
situated over ‘C’ Schedule property was being used by family
members till the suit was filed. He also relied upon the depositions
of P.Ws. 2 and 3. P.W. 2 in his evidence stated that he had learnt
that in the family partition each brother (Nidhi and Bidyadhar) got
11.00 decimals of land and 5 Mahana of Bell Metals and Rs. 500/- in
cash. The plaintiff (Rama Chandra Prusty) was two to three years old
at that time, who was living jointly with his parents. Bidyadhar
(defendant no. 1) was the Karta of the family. He also deposed in
para-2 of his deposition that Bidyadhar told P.W. 2 that he
purchased ‘C’ Schedule property out of the money which he got in
partition. In cross-examination, he denied to the suggestion that
Bidyadhar has not purchased the suit land out of cash of Rs. 500/-
which he got in partition. Mr. Mohanty further submitted that the
defendant no. 1 (Bidyadhar) in his written statement (Ext. B) stated
that ‘C’ Schedule land was his self acquired property. Mr. Mohanty
further submitted that the said statement cannot be taken into 9
consideration as defendant no. 1 did not adduce any evidence.
Moreover, he being the Karta and Manager of the family, it is for him
to prove by adducing clear and satisfactory evidence that he
purchased the suit ‘C’ Schedule property from his own fund. In
support of his submission, he relied upon the decision in the case of
Mallesappa Bandeppa Desai and another -v- Desai Mallappa
alias Mallesappa and another, reported in AIR 1961 SC 1268,
wherein the Hon’ble Supreme Court has held as under:-
“15. In this connection it is necessary to bear in
mind that Respondent 1 has not shown by any
reliable evidence that the expenses for the said
litigation were borne by him out of his pocket. It is
true that both the courts have found that Respondent
1 purchased certain properties for Rs 600 in 1925
(Ex. B-4). We do not know what the income of the
said properties was; obviously it could not be of any
significant order; but, in our opinion, there is no
doubt that where a manager claims that any
immovable property has been acquired by him with
his own separate funds and not with the help of the
joint family funds of which he was in possession and
charge, it is for him to prove by clear and satisfactory
evidence his plea that the purchase money proceeded
from his separate fund. The onus of proof must in
such a case be placed on the manager and not on his
coparceners………...” (Emphasis Supplied)
9. Mr. Bhuyan, learned counsel for the respondents, on the
other hand, submitted that there is no quarrel over the law laid down
by the Hon’ble Supreme Court in the case stated above. However,
the plaintiff has to prove his case and cannot succeed on the
weakness of the defendants. It is his submission that when the
plaintiff has come to the Court with a definite plea that ‘C’ Schedule 10
property was purchased from the joint family fund, it is for him to
prove that the joint family has sufficient nucleus to acquire the
property and the joint family nucleus was used for purchase of the
property. When the initial burden of proof is discharged by the
plaintiff, the onus shifts to the defendants to rebut the same. Thus,
the law laid down by the Hon’ble Supreme Court is only applicable
when the plaintiff discharges the initial burden of proof. In support of
his case, Mr.Bhuyan relied upon the decision in the case of
Brundaban Padhan –v- Krishna Pradhan, reported in 1985 (I) OLR
186, wherein a Division Bench of this Court in paragraph-7 of the
said judgment has laid down the law as follows:
“7. It is well-established in law that there is no
presumption that a family, because it is joint, owns
joint family property or any property whatsoever.
Thus, in a suit for partition, the burden of proving
that a particular item of property is a joint family
property rests entirely on the plaintiff who claims it
to be so. In order to establish that the acquisition
of any property in the name of any of the individual
members of the coparcenery was, in fact, joint
family property, the plaintiff must prove that the
family was possessed of some property, the surplus,
out of the income of which, was sufficient for the
acquisition of the said property by the joint family.
Once it is established that the joint family had
property from out of the income of which there was
a surplus sufficient for the acquisition of other
properties, keeping in view the value of such
properties the presumption of law is that it is the
joint family which has acquired the property even
though the acquisition was in the name of the
individual member. The said presumption is
rebuttable by showing that the property was the
separate and self-acquired property of the particular
member in whose name it stands or was acquired.
The aforesaid presumption of law is available in the 11
case of acquisition in the name of a coparcener, i.e.,
a male member of the joint family. But there is no
such presumption available in the case of property
standing or acquired in the name of a female
member of the family.”
10. The aforesaid two decisions are not in conflict with each
other so far as the principles of law decided therein. Similar view has
also been taken in the case of D.S.Lakshmaiah and another Vs.
L.Balasubramanyam and another reported in AIR 2003 SC 3800,
in order to analysis the rival contentions of the parties, it is to be
seen whether the plaintiff has been successful in discharging the
initial burden of proof by establishing that the joint family had
sufficient nucleus to acquire ‘C’ Schedule property and the said
nucleus was utilized in acquiring ‘C’ Schedule property. The
pleadings of the plaintiffs disclose that ‘C’ Schedule property was
purchased by Bidyadhar by utilizing the cash which he got in
partition of the year, 1932. P.W. 2 also throws some corroboration to
the aforesaid pleadings made in the plaint by deposing that
Bidyadhar during his lifetime told him that he had purchased ‘C’
Schedule land out of the money which he got in partition. However,
during cross-examination, he refused to have any personal
knowledge of such partition and deposed that he was only 10 years
old at the time of such partition. P.W. 3 who is none other than the
son of original plaintiff, also deposed that Bidyadhar paid the
consideration money out of cash of Rs. 500/- which he got in
partition. He also denied the suggestion to the effect that Bidyadhar 12
purchased the suit ‘C’ Schedule land out of his own income.
However, P.W. 3, Rabindra Kumar Prusty, admitted in his evidence
that at the time of partition, his father (the original plaintiff) was a
minor. He also deposed in para-5 of his cross-examination that the
financial condition of Bidyadhar Prusty was very good. He had never
taken any loan from anybody. At the time of partition, P.Ws. 2 and 3
were minors and they did not have any personal knowledge about
the partition and the property fell to the share of Nidhi and
Bidyadhar in such partition. In that view of the matter, the evidence
of P.Ws. 2 and 3 regarding partition and allotment of share do not
inspire confidence with regard to allotment of hard cash in favour of
Bidyadhar. Moreover, since P.Ws. 2 and 3 had no direct knowledge
regarding source of purchase of the suit ‘C” Schedule property, the
same cannot be taken into consideration. There is no other material
available on record which can be relied upon to come to a conclusion
that the schedule ‘C’ property was acquired from joint family
nucleus. Moreover, the plaintiffs have miserably failed to establish by
adducing cogent evidence to show as to whether Bidyadhar
(defendant no.1) had received any hard cash in the partition of 1932.
On the other hand, it is the statement on oath of P.W. 3 that the
financial condition of Bidyadhar was sound and he had not incurred
any loan in his lifetime. In view of the discussions made above, the
plaintiffs have miserably failed to discharge the initial burden of
proof cast on them to bring home their contention that ‘C’ Schedule 13
property was purchased by Bidyadhar from the joint family nucleus.
Accordingly, this Court endorses the analysis and finding of the
learned trial court with regard to Issue Nos. 4 and 5. The only
conclusion that can be deduced from the above is that ‘C’ Schedule
property is the self- acquired property of Bidyadhar.
11. The next question that falls for consideration is whether
‘C’ Schedule property was blended with the joint family property and
treated as part of the joint family property. To consider the issue, it
is profitable to discuss the law on this point. The decision in the
case of Ram Janam Singh –v- Stae of Uttar Pradesh and
another, reported in AIR 1994 SC 1722, enumerates the doctrine of
blending as follows:
6. To pronounce on the question of law presented
for our decision, we must first examine what is the
true scope of the doctrine of throwing into the
“common stock” or “common hotchpot”. It must be
remembered that a Hindu family is not a creature
of a contract. As observed by this Court in
Mallesappa Bendeppa Desai v. Desai Mallappa9
that the doctrine of throwing into common stock
inevitably postulates that the owner of a separate
property is a coparcener who has an interest in the
coparcenary property and desires to blend his
separate property with the coparcenary property.
The existence of a coparcenary is absolutely
necessary before a coparcener can throw into the
common stock his self-acquired properties. The
separate property of a member of a joint Hindu
family may be impressed with the character of joint
family property if it is voluntarily thrown by him
into the common stock with the intention of
abandoning his separate claim therein. The
separate property of a Hindu ceases to be a
separate property and acquires the characteristic of
a joint family or ancestral property not by any
physical mixing with his joint family or his
ancestral property but by his own volition and
intention by his waiving and surrendering his
separate rights in it as separate property. The act
by which the coparcener throws his separate
property to the common stock is a unilateral act.
There is no question of either the family rejecting or
accepting it. By his individual volition he
renounces his individual right in that property and
treats it as a property of the family. No longer he
declares his intention to treat his self acquired
property as that of the joint family property, the
property assumes the character of joint family
property. The doctrine of throwing to the common
stock is a doctrine peculiar to the Mitakshra School
of Hindu law. When a coparcener throws is
separate property into the common stock, he
makes no gift under Chapter VII of the Transfer of
Property Act. In such a case there is no donor or
donee. Further no question of acceptance of the
property thrown into the common stock arises.”
In Lakkireddi Chinna Venkata Reddi and others Vs.
Lakkireddi Lakshmama, reported in AIR 1963 SC 1601, the
decision describes the principles of doctrine of blending as follows:-
“9. Law relating to blending of separate property
with joint family property is well-settled. Property
separate or self-acquired of a member of a joint
Hindu family may be impressed with the character of
joint family property if it is voluntarily thrown by the
owner into the common stock with the intention of
abandoning his separate claim therein: but to
establish such abandonment a clear intention to
waive separate rights must be established. From the
mere fact that other member of the family were
allowed to use the property jointly with himself, or
that the income of the separate property was utilised
out of generosity to support persons whom the
holder was not bound to support, or from the failure
to maintain separate accounts, abandonment cannot
be inferred, for an act of generosity or kindness will
not ordinarily be regarded as an admission of a legal
obligation. It is true that Butchi Tirupati who was
one of the devisees under the will of Venkata Konda
Reddy was a member of the joint family consisting of
himself, his five brothers and his father Bala Konda.
It is also true that there is no clear evidence as to
how the property was dealing with, nor as to the
appropriation of the income thereof. But there is no
evidence on the record to show that by any
conscious act or exercise of volition Butchi Tirupati
surrendered his interest in the property devised in
his favour under the will of Venkata Konda Beddy so
as to blend it with the joint family property. In the
absence of any such evidence, the High Court was,
in our judgment, right in holding that Lakshmama
was entitled to a fourth share in the property devised
under the will of Venkata Konda Reddy.”
A similar view has also been taken in a decision of the
judgment of the Hon’ble Supreme Court rendered in the case of
G.Narayana Raju (dead) by his legal representative Vs.
Chamaraju, reported in AIR 1968 SC 1276. This Court had also an
occasion to deal with the doctrine of blending in a judgment in the
case of Kishore Chandra Sahu and another Vs. Rukuna Sahu
and another, reported in 1988 (I) OLR 309. Thus, to sum up the
principles decided in the aforesaid decisions, it can be said that in
order to establish that the separate or self-acquired property of a
coparcener is blended with a joint family property following
ingredients have to be established.
1. There must be a coparcenery joint family in
existence;
2. Property in question must be separate or self
acquired of a Hindu coparcener;
3. He allows such property to be used by joint
family;
4. Such action of the coparcener must be out of his
own volition;
5. He must have an intention of waiving,
surrendering and/or abandoning his claim of
separate rights over such property.
Thus, the rival contentions of the parties have to be
examined on the principles stated above.
12. Mr. Mohanty, learned Senior Advocate submitted that
though he has come up with a definite case that the property was
purchased from a joint family nucleus but in the alternative the
plaintiffs in para-6 of the plaint have clearly pleaded that the
defendant no. 1 voluntarily blended ‘C’ Schedule property with the
common stock. He further contended that it has been graphically
pleaded by the plaintiff that ‘C’ Schedule property was purchased
from the joint family nucleus. Thus, even if there is no material to
prove acquisition of ‘C’ Schedule property from out of the joint family
fund, the plaintiffs have a right to abandon such a plea and proceed
with their alternative plea that ‘C’ Schedule property being the selfacquired
one was voluntarily thrown to the common hotchpot as has
been admitted by the acquirer in his written statement, the
defendant no. 1, the same loses its character of being a separate
property of the defendant no. 1 and is to be considered as a joint
family property.17
13. Mr. Bhuyan, on the other hand, submitted that the plea
taken in the plaint is inconsistent and not compatible with each
other. In construing a plea in any pleading, the Court must keep in
mind that a plea is not an expression of art and science but an
expression through words which may be pointed, precise and
consistent. As per law, one should not be allowed to take
inconsistent or multifarious plea to achieve his goal by hook or
crook. Thus, the theory of nucleus and theory of blending being
inconsistent cannot go together. The law is no more res integra on
this issue as elucidated in the case of Balabhadra Nisanka and
others Vs. Suka Dibya and others, reported in 38 (1972) CLT 325.
In the instant case, the defendant no. 1 has specifically denied the
plea of blending of ‘C’ Schedule property and assumption of its joint
family character, by filing his separate written statement (Ext. B) and
as per law, the defendant no. 1 is only competent person to say
about the blending. His pleading in the written statement is
admissible as relevant piece of evidence as per Section 32 of the
Evidence Act, 1872. On the other hand, the plaintiffs have taken a
positive plea that ‘C’ Schedule property is a joint family acquisition
and not the separate property of defendant no. 1 and as such, the
theory of blending is not at all available to him, in the absence of
positive admission regarding acquisition of ‘C’ Schedule property by
defendant no. 1 from his own fund. Had the defendant no. 1
intended to purchase the suit land from the joint family nucleus, he
would have purchased the same in the names of the family
members. He further submitted that in the sale deed, i.e. Ext. A, the
defendant no. 1 has referred the ‘C’ Schedule property as his
separate property. While applying for permission from the
Khasmahal authority as well as the Urban Land Ceiling Authority,
there is no reference to the suit property as joint family property. In
the Major Settlement, ‘C’ Schedule property has been exclusively
recorded in the name of Bidyadhyar (defendant no. 1) alone and the
plaintiffs had never objected to the same. Thus, the intention of
defendant no. 1 was very much clear that he had purchased ‘C’
Schedule property from out of his own fund and was never thrown to
the common stock for the benefit of the joint family.
14. Analyzing the pleadings of the parties, it is apparent
that the plaintiffs have never made any positive admission to the
effect that ‘C’ Schedule property is the exclusive property of
defendant no. 1 which is first and foremost characteristic to be
pleaded and proved to attract the doctrine of blending. Moreover,
execution of Ext. A itself makes it abundantly clear that the
defendant no. 1 had never intended to throw ‘C’ Schedule property to
the joint stock for being used for the benefit of the members of the
joint family by waiving and abandoning his exclusive rights over the
same. From the conduct of defendant no. 1, his intention was very
much clear. No doubt, there is some evidence on record which go to
show that the entire family of Bidyadhar including original plaintiff, 19
namely, Ramachandra were staying in the thatched house standing
on ‘C’ schedule property till 1955. The thatched house collapsed
during that year due to heavy rain. Thereafter, the same was being
used as Bari (kitchen garden) and open latrine on schedule ‘C’
property was being used by the family members. Mere fact that
other members of the family were allowed to use the property jointly
with himself (defendant no. 1), it cannot be inferred that the
defendant no. 1 had abandoned and/or waived his exclusive right
over ‘C’ Schedule property as held in the case of Lakkireddi Chinna
Venkata Reddi and others (supra). Thus, the plaintiffs have signally
failed to satisfy any of the ingredients of doctrine of blending, as
referred to above, to establish that ‘C’ Schedule property was
blended with the joint stock/thrown to the joint stock and it has
assumed the character of the joint family property. In that view of
the matter, findings on Issue No. 7 arrived at by the learned trial
court needs no interference.
The next question arises as to whether the plaintiffs
have a right of re-purchase as provided under Section 4 of the
Partition Act.
Law is well-settled that a coparcener/co-owner/cosharer
is permitted to exercise his right of re-purchase under Section
4 of the Partition Act only when the transferee has sued for partition
of his/her purchased property by filing a suit for partition. In the
instant case, the transferee, namely, defendant no. 10 has not filed
any suit for partition and for allotment of his purchased property to
the share of his vendor. In the case of Babulal –v- Habibnoor Khan
(Dead) by L.Rs. and others, reported in AIR 2000 SC 2684, the
Hon’ble Supreme Court held as follows:-
“10. Therefore, one of the basic conditions for
applicability of Section 4 as laid down by the
aforesaid decision and also as expressly mentioned
in the section is that the stranger-transferee must
sue for partition and separate possession of the
undivided share transferred to him by the co-owner
concerned. It is, of course, true that in the said
decision it was observed that even though the
stranger-transferee of such undivided interest moves
an execution application for separating his share by
metes and bounds it would be treated to be an
application for suing for partition and it is not
necessary that a separate suit should be filed by
such stranger-transferee. All the same, however,
before Section 4 of the Act can be pressed into
service by any of the other co-owners of the dwelling
house, it has to be shown that the occasion had
arisen for him to move under Section 4 of the Act
because of the stranger-transferee himself moving for
partition and separate possession of the share of the
other co-owner which he would have
purchased………...”
A similar view has also been taken in a decision in the
case of Gautam Paul –v- Debi Rani Paul and others, reported in
AIR 2001 SC 61, wherein the Hon’ble Supreme Court in paragraph
23 held as follows:-
“23. We are in agreement with this opinion. There
is no law which provides that co-sharer must only
sell his/her share to another co-sharer. Thus
strangers/outsiders can purchase shares even in a
dwelling house. Section 44 of the Transfer of
Property Act provides that the transferee of a share
of a dwelling house, if he/she is not a member of 21
that family, gets no right to joint possession or
common enjoyment of the house. Section 44
adequately protects the family members against
intrusion by an outsider into the dwelling house.
The only manner in which an outsider can get
possession is to sue for possession and claim
separation of his share. In that case Section 4 of the
Partition Act comes into play. Except for Section 4
of the Partition Act there is no other law which
provides a right to a co-sharer to purchase the
share sold to an outsider. Thus before the right of
pre-emption, under Section 4, is exercised the
conditions laid down therein have to be complied
with. As seen above, one of the conditions is that
the outsider must sue for partition. Section 4 does
not provide the co-sharer a right to pre-empt where
the stranger/outsider does nothing after purchasing
the share. In other words, Section 4 is not giving a
right to a co-sharer to pre-empt and purchase the
share sold to an outsider anytime he/she wants.
Thus even though a liberal interpretation may be
given, the interpretation cannot be one which gives
a right which the legislatures clearly did not intend
to confer. The legislature was aware that in a suit
for partition the stranger/outsider, who has
purchased a share, would have to be made a party.
The legislature was aware that in a suit for partition
the parties are interchangeable. The legislature was
aware that a partition suit would result in a decree
for partition and in most cases a division by metes
and bounds. The legislature was aware that on an
actual division, like all other co-sharers, the
stranger/outsider would also get possession of his
share. Yet the legislature did not provide that the
right for pre-emption could be exercised “in any suit
for partition”. The legislature only provided for such
right when the “transferee sues for partition”. The
intention of the legislature is clear. There had to be
initiation of proceedings or the making of a claim to
partition by the stranger/outsider. This could be by
way of initiating a proceeding for partition or even
claiming partition in execution. However, a mere
assertion of a claim to a share without demanding
separation and possession (by the outsider) is not
enough to give to the other co-sharers a right of preemption.
There is a difference between a mere
assertion that he has a share and a claiming for
possession of that share. So long as the strangerpurchaser
does not seek actual division and
possession, either in the suit or in execution
proceedings, it cannot be said that he has sued for
partition. The interpretation given by Calcutta,
Patna, Nagpur and Orissa High Courts would result
in nullifying the express provisions of Section 4,
which only gives a right when the transferee sues
for partition. If that interpretation were to be
accepted then in all cases, where there has been a
sale of a share to an outsider, a co-sharer could
simply file a suit for partition and then claim a right
to purchase over that share. Thus even though the
outsider may have, at no stage, asked for partition
and for the delivery of the share to him, he would be
forced to sell his share. It would give to a co-sharer
a right to pre-empt and purchase whenever he/she
so desired by the simple expedient of filing a suit for
partition. This was not the intent or purpose of
Section 4. Thus the view taken by Calcutta, Patna,
Nagpur and Orissa High Courts, in the
aforementioned cases, cannot be said to be good
law.”
In the case of Prahallad Ch. Mohanty and another -vSurendra
Nath Mohanty and others, reported in AIR 2008 Orissa
122, this Court held that right of pre-emption is also available to a
coparcener, if one of the members of the joint family the suit for
partition impleading the stranger as a party to the suit. But, the
view taken in the case of Prahallad Ch. Mohanty (supra) cannot be
considered good law and as a precedent, in view of the decision of the
Hon’ble Apex Court in the case of Gautom Paul (supra) which was
not taken into consideration by this Court. In the instant case,
partition in respect of Schedule ‘B’, ‘D’ and ‘E’ properties has already
been decreed by way of compromise. The suit is only confined to ‘C’ 23
Schedule property over which the plaintiffs claim exclusive right and
there is no prayer for partition of ‘C’ Schedule property. The
defendant no. 10 has also not filed any suit for partition and
allotment of ‘C’ schedule property to the share of his vendordefendant
no.1. Moreover, it has been held that ‘C’ Schedule
property is the self-acquired property of Bidyadhar (defendant no.1).
Thus, the right of pre-emption for purchase of property under
Section 4 of the Partition Act is not available to the plaintiffs.
15. In view of the above, the appeal being devoid of merit is
dismissed, but in the circumstances, there shall be no order as to
cost.
…………………………...
K.R. Mohapatra, J.
Orissa High Court, Cuttack
Dated the 11th December, 2015/bks/ss
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