The burden of proof in establishing the nature of joint family property and the significance of sale deeds executed jointly in determining joint possession and enjoyment of the property.

NAVANITI PRASAD SINGH, J.

The present Intra-Court Appeal under Clause 10 of the Letters Patent of Patna High Court is against the judgment and order dated 29.03.2010 passed by learned Single Judge of this Court in C.W.J.C. No. 8890/2009.

2. The proceedings arise out of orders passed by the Consolidation Authorities in respect of right, title and interest of the parties for the sale in respect of certain properties. The appellants were the respondents 5 to 11 in the writ proceedings, and the writ petitioners are respondent nos. 5 to 12 in this appeal. It appears that the writ petitioners/respondents had claimed before the Consolidation Authorities that their father Deosagar Prasad Singh had purchased certain lands from Ram Dahin Singh, and as such, they were entitled to be recorded as raiyat in respect of said lands. The respondents/appellants, who are sons of Laxmi Singh, claimed that they have received those lands as gift from Jugal Singh to whom the lands exclusively belong to. Let it be noted that Ram Dahin Singh and Jugal Singh are own brothers and Laxmi Singh is their cousin. The genealogy is given hereunder :

3. Therefore, the moot question before the authorities was, what is the nature of the land which Ram Dahin Singh allegedly sold to the writ petitioners respondents.

4. Mr. Shashi Shekhar Dwivedi, learned Senior Counsel appearing for the respondents/appellants submits that the property in question were purchased exclusively by Jugal Singh by registered sale deed or acquired by way of settlements in his individual capacity. His elder brother Ram Dahin Singh has no right, title or interest in those properties. He had, thus, validly gifted those properties or part thereof to the respondent appellants, and therefore, when the Consolidation proceedings started the respondent appellants were rightly entertained as raiyats of those plots. He further submitted on the strength of the case of Srinivas Krishnarao Kango Vs. Narayan Devi Kango and Ors. since reported in AIR 1954 SC 379; which followed the case of several others and earliest being AIR 1947 Privy Council 189; that onus lies upon the party who seeks to disprove an existing state of affairs and that proof of existence of joint family does not lead to presumption that the property held by any member of the family is joint. The person claiming such jointness, has the onus to discharge.

5. On the other hand, Sri P.N. Shashi, learned Senior Counsel for the writ petitioners/respondents submits that assuming, though not conceding, for the sake of argument, that the property were purchased by Jugal Singh in his individual capacity, the very fact, that in respect of part of those properties, there were admittedly several sale deeds subsequently executed jointly by Ram Dahin Singh and Jugal Singh, in narration whereof also, it was clearly stated with reference to properties having been purchased, were in joint possession and enjoyment of the vendors. This document itself established that, even though, the property was individually purchased by Jugal Singh, it was blended in joint properties and put in common hotchpotch, and was thus, treated by both the brothers as joint family property, and both dealt with it accordingly. Therefore, when later Ram Dahin Singh purported to sale half of his interest in those properties, Jugal Singh’s predecessor-in-interest could not challenge that Ram Dahin Singh had no interest in those properties. Even if, they challenged, the onus was upon them to disprove the said sale deeds jointly executed in respect of the same properties.

6. We