The court affirmed that property held in joint family is not subject to unilateral gift by a member, emphasizing the burden of proof lies on asserting self-acquisition.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. This is defendants’ second appeal against the judgment of affirmance.

2. Parties will be referred to by their original placement in the suit and will include their heirs and legal representatives substituted at different stages.

3. The plaintiff filed suit for partition of the suit properties as detailed in Schedule A of the plaint claiming 1/3rd share with a further prayer to declare registered deed of gift no. 546 dated 4th January, 1999 executed by defendant no. 2 in favour of defendant no. 1 to be void and in-operative.

4. Plaintiff is the son, who filed the suit against his father Mahabir Prasad Keshri (defendant no. 2), his son Ranjit Kumar Keshri (defendant no. 3) and Smt. Ranjeeta Kumari (D1 w/o D2) for partition.

5. The main contention of the plaintiff as pleaded in the plaint is that the suit property was joint family property which was acquired by his grandfather Mangal Sao during his life time in 1937 jointly in the name of Mahabir Prasad Keshri (defendant no. 2) and his other four brothers.

6. The suit properties fell in the share of Mahabir Prasad Keshri (D2) which was transferred by gift to Defendant no. 1 against which the present case has been filed.

7. The case of the defendants is that the suit for setting aside the deed of gift dated 04.01.1999 has been filed in the garb of partition suit. As per their case, contrary to the averment made in the plaint, the sons of Mangal Sao were not minor. The property was jointly purchased in their name on 02.06.1937. After the death of Mangal Sao, the entire property was partitioned among legal heirs of Mangal Sao on 22.10.1961 and memorandum of partition was also drawn to that effect.

8. Mahabir Prasad Kesri gave Rs.50,000/- to the plaintiff for starting his own business at Bokaro Thermal Power which was received by his wife and pursuant to it, a deed of relinquishment was executed on 20.04.1985 in the suit property, after receiving the amount for the service rendered to defendant nos. 1 and 2, out of love and affection, the said deed of gift was executed in favour of defendant no. 1. The main contention is that Mangal Sao died in 1937 before the property was jointly purchased by the brothers which were not joint family property, but self-acquired property by defendant no. 2.

9. On the basis of the pleadings of the parties, following main issues were framed:

Issue No. III - Whether there was unity of title and community of possession between the parties?

Issue No. IV - Whether deed of gift no. 540 executed by defendant no. 2 in favour of defendant no. 1 on 04.01.1999 was void, illegal, inoperative and not binding upon the plaintiff?

10. The trial court partly decreed the suit by recording a finding that Mahavir Prasad Keshri (D 2) had disclosed his age in an enquiry under Section 202 of the Cr.P.C. (Ext.7) to be 70 years as on 09.02.2000. The date on which property was jointly purchased by him was 02.06.1937 from which it will be apparent his age was 07 years at the time of said execution. Thus, minor having acquired property during lifetime of his father is untenable.

11. Furthermore, if it was not a joint family property, there was no occasion for execution of unregistered deed of relinquishment (Ext. E) by the wife of the plaintiff in the suit property.

12. Following relief was allowed by the trial Court:

(a) Plaintiff was entitled to 1/5th share in the suit property.

(b) Deed of gift executed by Mahabir Prasad Keshari in favour.

Defendant no. 1 was illegal and not operative.

13. It was also held by the trial court that there was unity of title and possession over the suit property and the defendant no. 2 had no authority to execute the deed of gift in favour of defendant no. 1 as it was not his self-acquired property.

14. Learned first appellate court has concurred with the finding of fact and dismissed the appeal.

15. The second appeal has been admitted on the following substantial question of law:

(i) Whether the property which has been gifted t