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PATNA HIGH COURT
U.N.Sinha and Tarkeshwar Nath JJ.
Ramnagina Sah
Versus
Harihar Sah
Appeal from Original Decree No. 334 of 1960 ;
Decided On : AUGUST 27, 1965
PARTITION - Joint Family Property - Acquisition of Land in Name of One Member - Presumption of Joint Ownership - Onus of Proof - Partition - Exclusion of Property from Partition - Burden of Proof - Registration Act, Sec. 17(1)(b) - Applicability - Limitation Act, Art. 11 - Applicability - Adverse Possession - Plea not Specifically Taken in Written Statement - Maintainability.
Fact of the Case:
Plaintiffs sought partition of their 1/6th share in a property, claiming that it was joint family property acquired in the name of defendant No. 1. The defendants contested the claim, asserting exclusive ownership and possession of the property based on a private partition and subsequent construction of a house on the land.
Finding of the Court:
1. The land on which the house stood was acquired by the joint family in the name of defendant No. 1. 2. Plaintiffs failed to prove that the property in suit was excluded from the partitions alleged by them. 3. The memorandum of partition (Ex. D) was admissible in evidence, except for the recitals relating to the extinguishment of title and transfer of interest. 4. The suit was not barred by limitation as the execution case in which the property was attached was disposed of after the satisfaction of the decree and the attachment came to an end. 5. The plea of adverse possession was not specifically taken in the written statement and, therefore, not considered.
Issues: 1. Whether the land on which the house stood was acquired by the joint family or by defendant No. 1 for his own benefit. 2. Whether the plaintiffs had discharged the onus of proving that the property in suit was excluded from the partition. 3. Whether the memorandum of partition (Ex. D) was admissible in evidence. 4. Whether the suit was barred by limitation. 5. Whether the defendants had acquired title to the property by adverse possession.
Ratio Decidendi: 1. The presumption of joint ownership arises when a joint family property is acquired in the name of one member. The onus of proof lies on the person alleging that the property is exclusively owned by one member. 2. In the absence of evidence to prove that the property in suit was excluded from the partitions alleged by the plaintiffs, the presumption of joint ownership is not rebutted. 3. A partition list merely recording what had already happened is not registrable under Sec. 17(1)(b) of the Registration Act. 4. A suit under Order XXI, Rule 63 of the Code of Civil Procedure is not necessary when the execution case is disposed of after the satisfaction of the decree and the attachment comes to an end. 5. A plea of adverse possession must be specifically taken in the written statement to be considered by the court.
Final Decision: The appeal was dismissed with costs payable to defendants-respondents 1, 3, and 4.
Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for partition of their 1/6th share in the property described in Schedule A of the plaint.
2. The relationship between the parties will appear from the following genealogical table mentioned in the plain.
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3. The plaintiffs case was that they and the defendants separated in mess and properties long ago but the property in suit mentioned in Schedule A was still joint between them and they were in joint possession of the same. Harihar Sah (defendant No. 1) being the eldest member of the family was the karta of this family and in that capacity he was managing that property on behalf of the parties to this suit and in course of the management defendant No. 1 let out to different tenants on monthly rent the house described in Schedule A of the plaint. The income received from that property used to be divided between the plaintiffs and defendants according to their respective shares. Plaintiffs had 1/6th share. Defendants 1, 3 and 4 also had 1/6th share. Similarly defendants 2, 5 and 6 as well had 1/6th share and lastly defendant No. 7 had half share in the said property. Some time in November 1958 a dispute arose between the plaintiffs on one hand and defendant No. 1 on the other in respect of the management of the said property and the division of the income thereof and hence plaintiff No. 1 requested defendant No. 1 and other defendants to divide the said property amicably but they paid no heed to it and ultimately refused to divide the said property.
In these circumstances, the plaintiffs instituted the suit giving rise to this appeal on 18th August 1959 for partition of this 1/6th share in the property described in Schedule A of the plaint. The property has been described in Schedule A as holding No. 339 in ward No. 6 of the Dumka Municipality in Dumka town and it consists of a pucca building with a portion having tiled roof on an area of 5 kathas and 1 1/4 dhurs of land.
4. There were several written statements in this case. The real contest was by defendants 1 and 3 and their case was that the plaintiffs and defendants became separated in mess and properties long ago and the property in suit was no longer a joint property of these parties and they were not in joint possession of it. Defendant No. 1 claimed to be the sole owner of this property for more than several 12 years and he had throughout paid the rent and Municipal taxes and got receipts in his name. Their case further was that defendant No. 1 acquired the property in suit by a settlement from the then landlord Mr. Grant in the year 1928 and, by virtue of a private partition on 5th Bhado 1337 Amli between Lalji Sah, Gopal Sah and Shiva Govind Sah (defendant No. 2), who were members of the joint family with Lalji Sah as the karta thereof this property in suit was allotted to the exclusive share of defendant No. 1. Defendant No. 1 then constructed a house on the said acquired land out of his own money, after having obtained the permission of the Municipality. Defendant No. 1 asserted his exclusive title in respect of the said property in capacity of a sole owner and he claimed to have realised the rent from the tenants.
On these grounds, he resisted the suit for partition. Defendant No. 7 supported the case of defendants 1 and 3. Defendant No. 4 was a minor and his guardian ad litem filed a formal written statement. Defendants 2, 5 and 6, on the other hand, filed one written statement supporting the plaintiffs and they wanted a partition of their 1/6th share as well.
5. Issue No. 1 related to the maintainability of the suit in its present form and the court held that the suit was maintainable. Issue No. 4 was as to whether the suit was barred by Sec. 42 of the Specific Relief Act and this was answered in the negative. Issue No. 3 was whether the suit was barred by limitation and this was answered in favour of the plaintiffs. Issue No. 5 reads thus: "Are the plaintiffs entitled to a d
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