Back
1957 Supreme(Pat) 124
PATNA HIGH COURT
Choudhary and K.Dayal JJ.
Sital Singh
Versus
Ram Prasad Singh
Appeal from Original Decree No. 211 of 1948 ; 152 of 1948 ;
Decided On : APRIL 26, 1957
In a partition suit, the burden of proving the existence of a joint Hindu family lies on the party asserting it, and the burden of proving a previous partition lies on the party alleging it.
Headnote:
PARTITION - Joint Hindu Family - Partition Suit - Burden of Proof - Nucleus Theory - Previous Partition - Kora - Admissibility - Estoppel.
Fact of the Case:
Plaintiffs, sons of Jamuna Singh, filed a partition suit against the defendants, sons of Bam Prasad Singh, claiming partition of ancestral and self-acquired properties. The defendants claimed that there was a previous partition and that the properties in dispute were their self-acquired properties.
Finding of the Court:
The court held that the plaintiffs had discharged the burden of proving the existence of a joint Hindu family and that the defendants had failed to prove the alleged previous partition. The court also held that the Kora (partition deed) relied upon by the defendants was a fabricated document and could not be relied upon.
Issues: 1. Whether the plaintiffs had discharged the burden of proving the existence of a joint Hindu family? 2. Whether the defendants had proved the alleged previous partition? 3. Whether the Kora (partition deed) relied upon by the defendants was genuine?
Ratio Decidendi: 1. The court held that the plaintiffs had discharged the burden of proving the existence of a joint Hindu family by showing that there was a nucleus of joint family property from which the disputed properties could have been acquired. 2. The court held that the defendants had failed to prove the alleged previous partition by reliable evidence. The court found that the Kora (partition deed) relied upon by the defendants was a fabricated document and could not be relied upon. 3. The court held that the Kora (partition deed) relied upon by the defendants was not genuine as it was on a Sada paper, not stamped or registered, the signature of Jamuna on it appeared to be of doubtful character, and it did not bear the thumb-mark of Jamuna.
Final Decision: The court allowed the plaintiffs' appeal and dismissed the defendants' appeal. The court decreed partition of the disputed properties in half shares between the plaintiffs and the defendants.
Certainly. Based on the provided legal document, the key points are as follows:
-
The burden of proof to establish the existence of a joint Hindu family in a partition suit lies on the party asserting it, and the burden to prove a previous partition rests on the party claiming it (!) .
-
The court found that the plaintiffs successfully proved the existence of a joint Hindu family by demonstrating a nucleus of joint family property from which the disputed properties could have been acquired (!) .
-
The defendants failed to substantiate their claim of a previous partition with reliable evidence, and the document they relied upon (the Kora) was deemed fabricated, not genuine, and on an unstamped, unregistered paper lacking proper signatures and thumb-marks (!) .
-
The court discredited the defendants’ story of a prior partition due to inconsistencies and contradictions in their pleadings and evidence, including discrepancies about the timing and reasons for the alleged separation and partition (!) (!) (!) .
-
The court held that the evidence did not support the claim that the family had separated or partitioned prior to the suit, and the alleged Kora was considered a fabricated document, thus invalidating the defendants’ case (!) (!) .
-
The plaintiffs demonstrated that the joint family had sufficient nucleus to start a business (cloth shop) with a capital of Rs. 400-500, and there was no rebuttal evidence from the defendants to contest this (!) (!) (!) .
-
The court concluded that the disputed properties, including the cloth shop, were still joint family assets and ordered a partition, granting the plaintiffs a half share (!) .
-
The appeal filed by the plaintiffs was allowed, and the appeal by the defendants was dismissed, affirming the decision that the parties remained joint and the properties were to be partitioned accordingly (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
Dayal, J.
1. These two first appeals arise out of a decision in Title Suit No. 54 of 1956 of the Subordinate Judge, Second Court, Muzaffarpur.
2. The appellants of First Appeal No. 211 of 1948 instituted the above suit for partition against the appellants of the First Appeal No. 152 of 1948. The plaintiffs are the sons of Jamuna Singh, the deceased brother of Bam Prasad Singh (defendant No. 1). The other respondents are the sons of defendant No. 1 Jamuna and Ram Prasad had one more brother named Gangotri Singh, who died unmarried.
3. The plaintiffs case, in short, is that the parties have been separate in mess since 1944, but the family is still joint in other respects and defendant No. 1 is the Karta thereof, the properties movable and immovable, sought to be partitioned, according to the plaintiffs, are still joint, the total valuation thereof is Rs. 10,101. The immovable properties included both ancestral and self-acquired. Lately, there have been disputes between the parties. Hence the suit. The plaintiffs also seek rendition of accounts from defendant No. 1 in his capacity of Karta of the family.
4. Defendant No. 1 alone contested the suit. He has filed a written statement. According to him, his father Manrup had two marriages and Jamuna, father of the plaintiffs was born by the first wife and he and Gangotri by the second. There used to be differences between Jamuna and his step mother and Jamuna accordingly separated during the life time of his father. It is alleged that, on the death of Manrup, there was a partition, whereby one-third of -the ancestral properties was allotted to the plaintiffs and two-thirds to the defendants and Gangotri, who continued Joint. Later on, a Kora (Ext. A) was prepared in 1328 incorporating the divisions made by partition, Gangotri died sometime after unmarried. The defence case is that the share of Gangotri devolved on defendant No. 1 by survivor ship with the result that the entire two-third share belonged to him. The properties other than ancestral are claimed to be acquisition of his branch. In regard to the movables, defendant No. 1 says that some of them are non-existent and the others belong to him.
5. One of the minor defendants, namely, minor defendant No. 4, has appeared through a pleader-guardian, who has filed a formal written statement.
6. The Court below decreed the suit in part. The relevant portion of the decree runs as follows :
"The plaintiffs are entitled to partition of all the immovable properties excepting the cloth shop at Hajipur and all the movables that may be found excepting the ornaments which may be in possession of the female members of the family. The share of the parties will be half and half. The plaintiffs are not entitled to any accounts. ...."
Thus it appears that the defence case has been substantially disbelieved.
7 As against this decision, the plaintiffs have filed First Appeal No. 211 of 1948 and the defendants have filed First Appeal No. 162 of 1948.
8. The plaintiffs appeal is only concerned with the cloth shop at Hajipur. The Court below has. held that :
"There is no reliable evidence in this case that the shop was started with the joint family, funds. Witnesses on behalf of the plaintiff have no doubt stated that the shop is a joint family shop. Such assertion by itself cannot be enough. The witnesses do not claim to have seen the account book of the shop. They also do not claim that any investment in the shop-took place in their presence.. In the circumstances, it must be excluded from partition."
9. Mr. Prem Lall, appearing for the appellants in First Appeal No. 211 of 1948, has submitted that the decision of the Court below is clearly erroneous. There was sufficient nucleous of joint family property which conclusively proves that the shop in question had been started with the aid of the Joint family funds.
10. In Chandradeb Lall V/s. Nandji Lall, A. I. R. 1950 Pat 33 (A), a Division Bench of this Court has held that:
" ... . when in a
