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1955 Supreme(HP) 27
HIGH COURT OF HIMACHAL PRADESH
RAMABHADRAN, J.
Mela Ram
Versus
Amar Nath
First Appeal No. 5 of 1953
Decided On : 30-11-1955
Salig Ram Bhandari, for Appellants; Ved Vyas Mahajan, for Respondents.
The onus of proof lies on the plaintiff to prove that the suit property is the joint family property.
Headnote:
PARTITION - HINDU LAW - EVIDENCE - Onus of proof lies on the plaintiff to prove that the suit property is the joint family property. PARTITION - HINDU LAW - Partition - How may be proved - Separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness is one of the ways to prove partition.
Fact of the Case:
Plaintiffs filed a suit for partition and separate possession of one-half share of immovable property, situate at Surkhigali and Banikhet, district Chamba, alleging that the property was joint. The defendants contested the claim of jointness of the family.
Finding of the Court:
The court held that the plaintiffs failed to prove that parties were a joint family at the time the properties in suit were acquired, or that the property in suit was acquired out of joint family funds, or that the properties in question were acquired with the help of a nucleus supplied by joint family property.
Issues: 1. Whether the parties constituted a joint Hindu family? 2. Whether the property in suit belonged to that family?
Ratio Decidendi: 1. The onus of proof lies on the plaintiff to prove that the suit property is the joint family property. 2. Separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness is one of the ways to prove partition.
Final Decision: The appeal was dismissed with costs.
(A) HINDU LAW - PARTITION - EVIDENCE - Hindu Law - Joint family property - Suit for partition - Defendants denying jointness of family - Onus of proof.
Evidence Act (1 of 1872), S.101, S.102, S.103.
Where in a suit for partition on the allegation that the property is joint, if the defendants contest the claim of jointness of the family, then the plaintiffs cannot fall back on the assumption that the suit properties owed their origin to the necleus supplied by the joint family and on that basis contend that the onus should be placed upon the defendants. The onus to prove whether the suit property is the joint family property rightly lies on the plaintiff. AIR 1955 Cal 206 and AIR 1954 SC 379, Disting. (Para 6)
Anno : AIR Man., Evi. Act, Ss. 101 and 108, N. 16.
(B) HINDU LAW - PARTITION - Hindu Law - Partition - Partition how may be proved. In order to show separation, it may not be necessary to prove a formal partition, for it may be that a formal partition was never effected and if effected, it cannot be proved. In such a case the only means of proving partition is by proof of separate enjoyment for a sufficiently long time so as to overcome the presumption of jointness. Separate appropriation would be very good evidence of a tacit agreement amongst the members or amongst their ancestors to hold that property according to their separate shares. AIR 1950 Him-P. 8 and AIR 1952 SC 225, Foll. (Para 11)
(C) HINDU LAW - EVIDENCE - Hindu Law - Joint family property - Nucleus.
JUDGMENT :- This is a plaintiffs appeal against the judgment and decree of the learned District Judge of Chamba, dismissing their suit for partition and separate possession of one-half share of immovable property, situate at Surkhigali and Banikhet, district Chamba.
2. The following pedigree table will show the relationship of the parties :-
As would be obvious from the pedigree table, parties are descendants of a common ancestor, named Ram Dayal. Plaintiffs case was that they and the defendants formed a joint Hindu family and the property in suit, though entered in the revenue papers in the name of Hira Lal and his son, Kanhya Lal, constituted joint Hindu family and, therefore, was liable to partition.
3. The suit was resisted by the defendants, inter alia, on the ground that their ancestor, Hira Lal, separated from his brothers, Nihal Chand and Maya Ram, some 50 or 60 years ago. Leaving his home in Hoshiarpur district in the company of Kanhya Lal, defendant no. 1, Hira Lal, migrated to Dalhousie, where both of them started their separate business, which they subsequently extended to Chamba district. In this way, out of their earnings, they acquired considerable immovable properties at Surkhigali, Banikhet and Dalhousie.
The plaintiffs have no interest in these properties. In 1947, the plaintiffs set up a false claim to the property in suit and took illegal possession of a portion thereof, regarding which proceedings in court were pending.
4. The main point for determination, before the learned District Judge, was:- whether the parties constituted a joint Hindu family and, if so, whether the property in suit belonged to that family? A subsidiary question, which depended upon the finding on the above issue, was:- whether the plaintiffs were entitled to one-half of the suit properties? These two questions formed the subject-matter of issue no. 3, which ran as follows :-
"Is the property in suit the joint family property and are the plaintiffs entitled to half share in the same? Onus on plaintiffs." At the conclusion of the trial, the Court below came to the conclusion that the plaintiffs had failed to prove that parties constituted a joint family at the time the property in suit was acquired, or that the property was acquired out of joint family funds, or with the help of nucleus supplied by joint family property. In view of this finding, the plaintiffs were non-suited. Hence, this appeal.
5. Arguments in
