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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Narendra Kumar Vyas, J.
Smt. Ratna Bai, W/o Late Devendra Kumar Chandrakar - Appellants
Vs.
Tirath Ram, S/o Khelan Singh Chandrakar - Respondent
SA No. 136 of 2011
Decided On : 08-09-2022
C.P.C. - Civil Appeal - Section 100 - Summary of Acts and Sections: The court discussed the Hindu Succession Act, the Indian Evidence Act, and legal principles related to joint Hindu family property, partition, and burden of proof. The court's decision was influenced by the interpretation of these acts and sections, particularly in relation to the burden of proof in establishing joint family property and partition.
Fact of the Case:
The plaintiff filed a civil suit for declaration of title, partition, and permanent injunction, claiming joint Hindu family property. The defendants denied the allegations, asserting that a partition had already taken place.
Finding of the Court:
The trial court dismissed the suit, finding that the property had been partitioned and could not be re-partitioned. The first appellate court reversed the decision, holding that the property was joint Hindu property and directed for partition. The second appellate court set aside the first appellate court's decision and restored the trial court's judgment.
Issues: The main issues were whether the property was joint, and whether a partition had already taken place.
Ratio Decidendi: The burden of proof was on the plaintiff to establish joint family property. The court found that the plaintiff failed to prove that the property was not partitioned, and the burden could not be shifted to the defendants. The court also considered the daughters' entitlement to share in the property under the Hindu Succession (Amendment) Act, 2005.
Final Decision: The second appellate court allowed the appeal, setting aside the first appellate court's decision and restoring the trial court's judgment.
JUDGMENT :
1. This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 31.03.2011 passed by Additional District Judge (F.T.C.), Bemetara, District- Durg (C.G.) in Civil Appeal No. 9A/2011 (Tirath Ram & others Vs. Smt. Ratna Bai & others) setting aside the judgment and decree dated 12.10.2009 passed by Civil Judge Class-II, Saja, District- Durg (C.G.) in Civil Suit No. 40A/2009 for declaration of title, separate possession and grant of permanent injunction of the suit property mentioned in Schedule- A, B, C & D of the plaint.
2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 40A/2009 which was filed for declaration of title, separate possession and grant of permanent injunction
3. The instant Second Appeal has been admitted for hearing by this Court vide its order dated 06.07.2011 staying the effect and operation of the impugned decree framing following substantial questions of law:-
4. The brief facts, as reflected from the plaint averments, are that the plaintiff has filed civil suit on 21.07.2008 for declaration of title, partition, separate possession and grant of permanent injunction mainly contending that plaintiffs No. 4 to 7 are daughters of plaintiffs No. 1 & 2 and after marriage, they are residing in their matrimonial house. Plaintiff No. 3 is son of plaintiffs No. 1 & 2. Defendants No. 1 & 2 are widow and daughter of plaintiffs No. 1 & 2 son namely Devendra Kumar Chandrakar. The parties are Hindus and governed by Banaras Branch of Hindu. It has been further contended that plaintiff No. 1 is a resident of Village- Rampura, Tahsil- Saja and in pursuance of partition taken between their father and brothers, he has received 40 acres of land in the year 1974-75. The description of the properties has been given in the Schedules annexed with the plaint. Plaintiff No. 1 generating income from ancestral property, has purchased 20 acres of land in the name of both sons namely Pawan Kumar and Devendra Kumar. He was residing with joint family and as per his legal requirement, he has sold 16 acres of land and presently he is in possession of 44 acres of land.
5. It has been further contended that the suit property has been described in Schedule-A of the plaint, which is 17.59 Hectare (Total 38 Nos. of Khasra). Plaintiff No. 1 after marriage of his sons has partitioned the property in equal division. Accordingly, 5.61 Hectare has been recorded in his name and in the name of his son- Pawan Kumar, he has recorded 6.22 acres. Similarly, in the name of his younger son- Devendra Kumar, he has recorded 5.76 acres. The property has been described in Schedule- B, C & D of the plaint. It has been further contended that though there was separate land accounts, still the property has not been partitioned between him and his sons even before death of his younger son. In fact, it is joint Hindu family property. It has been further contended that after amendment in the Hindu Succession Act, the daughters i.e. plaintiffs No. 4 to 7 are also entitled to get equal share of property, therefore, they are entitled to get the share of property being co-parcener in the joint Hindu family property along with defendants No. 1 & 2. It has been further contended that defendants No. 1 & 2 have also recorded their names in the revenue record by order of Tahsildar, Khamariya in the year 2007-08 even after their objection which was rejected by the Tahsildar vide its order dated 27.06.2008. It has been further contended that in the property mentioned in Schedule-A of the plaint, the plaintiffs and defendants have 1/8th share. It has been further contended that after death of Devendra Kumar, 1/8th share, defendants No. 1 & 2 and plaintiff No. 2 mother- Bisen Bai have 1/3rd share of 1/8th part,
The burden of proof in establishing joint family property and partition lies with the party alleging its existence. The court also emphasized the entitlement of daughters to share in joint Hindu fami....
A joint family is presumed to remain joint unless a clear severance of status is proven, even without a physical division of property.
In disputes regarding partition of joint Hindu family property, the burden of proof lies on the party asserting partition, and the presumption of jointness remains unless clear evidence to the contra....
A joint Hindu family property remains joint unless proven otherwise; the burden of proof lies on the party claiming separate ownership, requiring credible evidence.
The court reaffirmed that daughters have equal rights as sons in ancestral properties, emphasizing the applicability of Section 6 of the Hindu Succession Act.
The court reaffirmed that for a valid partition among joint family properties, proper registration and absence of fraud are crucial, emphasizing joint possession and familial rights.
There can be partial partition between coparceners of a Hindu joint family – It is always open to members of joint Hindu family to divide some properties of family and to keep remaining undivided.
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