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1951 Supreme(Raj) 128
Rajasthan High Court
Wanchoo C.J. and Bapna, J.
Jetharam - Appellant
Versus
Hazarimal - Respondents
D.B. Civil Appeal No. 9 of 1950
Decided On : August 28, 1951
Indernath and Utsavlal, for Appellant; Sohan Nath and Sardar Nath, for Respondent
Headnote:Hindu Law—Joint Family — Joint Property — No presumption—Inclusion of minor sons name in patta does not make him joint owner with father— Facts and source of acquisition to be proved—Sons living with father.
To render the property joint, the person claiming such interest in the property must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds or acquired by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognisance of the court in the same way as any other fact, namely, by evidence.
The mere fact that the father thought it proper to add his minor sons name in the patta does not prove that the property was acquired jointly by the father and his son. Nor is the fact, that sons and grandsons lived with the father in the same house, sufficient for any presumption or finding that the father had voluntarily thrown the property in the common stock with the intention of abandoning all separate claims upon it.
2. The respondent Hazarimal sued the appellant Jetharam for specific performance of a contract of sale of a house situated at Jodhpur and more particularly described in the plaint, on the basis of an agreement of sale Ex. P-1 dated 29th January 1941. Rugnath Das and his three sons were impleaded as defendants Nos. 2 to 5 as mortgagees of the property. Laduram and Jaitulal, sons of Jetharam defendant, and their minor sons were impleaded defendants Nos. 6 to 12 on their own application. Defendant No. 1 and defendant Nos. 6 to 12 filed separate written statements but have taken identical pleas. They contested the suit on the following grounds:—
(1) that Jetharam was a person of weak intellect and his signatures had been secured on Ex.P.—1 under a misrepresentation and he did not fully understand the nature of the transaction at the time;
(2) that the completion of the sale had been made dependent upon the consent and willingness of the sons and grand-sons of Jetharam and as the same had not been secured, the agreement was not enforceable;
(3) that the house in dispute had been built by Dalla, father of Jetharam, and was the joint family property of Jetharam and his sons and grand-sons., and Jetharam alone had no authority to enter into an agreement for sale which was thus unenforceable.
3. The mortgagees denied any knowledge of the agreement of sale and expressed that they had no interest except under the mortgage which, they said, had been executed by Jetharam and his sons. The trial court accepted, the defence on all the three points and dismissed the suit. On appeal, the learned Judges of the High Court of the former covenanting State of Jodhpur reversed those findings and held on a discussion of the evidence and circumstances of the case that it had not been established that the house had been built by Dalla and was ancestral property in the hands of Jetharam. It was held that the land had been acquired and built upon by Jetharam himself. The contention that Jetharam had since the acquisition of the property thrown it into the common stock and made it joint family property belonging to his sons and grand-sons was negatived. It was also held that even on the assumption that the house was joint family property, the agreement to sell had been made for payment of his antecedent debts and was binding on his sons and grand-sons. It was further held that it had not been proved that Jetharam was a person of weak intellect; but on the other hand it had been fully proved that he had executed Ex.P-1 of his own free will after understanding its implications and no misrepresentation had been made to him, and further that there was no stipulation for obtaining the consent of the sons of Jetharam before the agreement of sale was to become complete. The suit was accordingly decreed for specific performances of the contract of sale against Jetharam, with directions that he should execute a sale-deed and have it duly registered and also deliver possession to the plaintiff, and for possession against the mortgagees on receipt of their mortgage amount and for possession against defendants Nos. 6 to 12 as well, as they stated that they had got into possession by redeeming the mortgage. A further direction was made that if any amount was left over after payment of the mortgage debt, it was to be paid to Jetharam.
4. The present appeal has been filed by Jetharam and defendant Nos. 6 to 12 who are his sons and grand-sons, and it appear, that the mortgagees having been paid off were not made parties to this appeal. The finding that Ex.P-1, the contract of sale, was not vitiated by any mis-representation or lack of understanding by the executant or by absence of consent of the so
