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Orissa High Court
S. K. RAY, J.
Binod Jena - Appellant
Versus
Abdul Hamid Khan - Respondents
Second Appeal No. 261 of 1970
Decided On : 11 March 1974
HINDU LAW - JOINT FAMILY PROPERTY - PRESUMPTION - BURDEN OF PROOF - JOINT ACQUISITION - PROPERTIES ACQUIRED BY JOINT LABOUR - PRESUMPTION OF JOINT FAMILY PROPERTY - REBUTTAL.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and possession of suit property, claiming that the sale deeds executed by defendant No. 3, as guardian of minor defendants 4 and 5, in favor of defendants 1 and 2 were invalid and not binding on them. The defendants contended that the suit properties were ancestral properties and the gift deed executed by Chuin in favor of defendant No. 6 was invalid, making the subsequent gift deed by defendant No. 6 to the plaintiffs also invalid.
Finding of the Court:
The court found that there was no evidence to establish that the suit properties belonged to Bidei Jena or that there was sufficient joint family nucleus from which they could have been acquired. However, the court held that the properties were jointly acquired by the parties and there was evidence that Chuin treated the properties as joint family properties. The court also found that the properties were acquired by the joint labor of Chuin and Nisakar, and in the absence of clear indication to the contrary, they would be presumed to be owned by them as joint family properties.
Issues: 1. Whether the suit properties were joint family properties or joint acquisition of the two brothers Nisakar and Chuin. 2. Whether the burden of proof that the two brothers were separate at the time of acquisition is on the plaintiffs.
Ratio Decidendi: 1. In the absence of proof of division, the presumption is that every Hindu family is joint in food, worship, and estate. This presumption is stronger in the case of brothers than in the case of cousins. 2. The burden of proof that the two brothers were separate at the time of acquisition is squarely on the plaintiffs. 3. Properties jointly acquired by the members of the joint family without the aid of joint family nucleus are presumed to be the joint family properties. 4. When the members of the joint family acquire properties by their joint labor, such properties, in the absence of clear indication to the contrary, would also be presumed to be owned by them as joint family properties.
Final Decision: The court dismissed the appeal, holding that the lower appellate court was correct in its conclusion that the suit properties acquired by Chuin and Nisakar were joint family properties in their hands and that Chuin treated the same as such.
Judgement
JUDGMENT :- This is a plaintiff s second appeal from the confirming decision of the lower appellate court.
2. They filed the suit for declaration of title in respect of the suit property comprising of 37 decimals 8 karis and 2 gandas and that the sale deeds dated 10-11-1965 (Exs. A and B) executed by defendant No. 3 for self and as guardian of minor defendants 4 and 5 in favour of defendants 1 and 2 are invalid in law and not binding upon the plaintiffs. They also prayed for confirmation of possession or in alternative, if found dispossessed, for recovery of the same.
3. Before setting out the plaintiff s case in detail it is necessary to set out the genealogy of the family to indicate the relationship between the plaintiff and defendants Nos. 3 to 9.
GENEALOGY. Bidei Jena
Nisakar Chuin Rama Hrushi (D-6)
Naba (D.8) Bhagat Bansi Murali Madan
(D.9) =W. Rukmani (D.7) (dead)
(D.3) Binod (P. 1) Mana (P. 2)
Basanti (D.4) Santi (D.5)
4. According to the plaintiffs, the suit properties were the self-acquisition of Nisakar and Chuin and each of them were in separate possession of moiety interest therein as owners. Chuin adopted defendant No. 6 and gifted away his entire -/8/- annas to him on 3-3-1922 under the deed of gift Ex. 7. Defendant No. 6 became absolute owner thereof. Defendants 1 and 2 purchased -/8/-share of Nisakar from defendants 8 and 9 and are in possession thereof. This transfer has not been challenged in this suit. Of the three sons of defendant No. 6, Bansi died first and thereafter Madan. Defendant No. 6 executed the deed of gift on 20-1-1966 (Ex. 8) in respect of his -/8/- properties acquired under Ex. 7 in favour of the plaintiffs, who became absolute owners thereof. On 10-11-1965, defendant No. 3 for self and mother guardian of defendants 4 and 5 transferred the interest under Exs. A and B to defendants 1 and 2 respectively as heirs of late Bansi. It is alleged that since Bansi had no interest in the suit properties, defendants 3, 4 and 5 did convey nothing to defendants 1 and 2.
5. The defence case is that the suit lands were ancestral properties of Bidei and not self-acquired properties of Chum and Nisakar. The gift deed of Chuin in favour of defendant No. 6 in respect of -/8/- interest in the joint family properties was invalid in law. Accordingly, Ex. 8, the deed of gift executed by defendant No. 6 conveying the entire -/8/- interest to the plaintiffs was also invalid in law. Bansi had 1/3rd interest in the same and the transfer by his heirs, namely, defendants 3, 4 and 5 to defendants 1 and 2 is valid in law and good title had passed to the said transferees.
6. The trial court found that the suit properties were joint family properties of Chuin and Nisakar having been acquired from out of the joint family nucleus. It retained the character of joint family properties in the hands of defendant No. 6. But Bansi, who pre-deceased Madan had a share in the same. Defendant No. 6 had, therefore, no right to transfer the entire land to the plaintiffs by way of gift. The defendants 3, 4 and 5 had 1/4th interest in the half share belonging to Chuin s branch and not 1/3rd as claimed by defendants 1 and 2. Accordingly, the sale deeds Exs. A and B are valid only to the extent of 1/4th and invalid as to the interest in excess of 1/4th conveyed thereunder. The defendants 1 and 2 will recover possession of the same only in a separate partition suit. This decree of the trial court was confirmed by the lower appellate court. It has not rendered any finding about the manner of acquisition of the suit properties and whether the family had sufficient nucleus from out of which the suit properties could have been acquired. It held these properties to be joint family properties on the ground that Chuin and after him defendant No. 6 treated the suit properties as joint family properties and defendant No. 6 was enjoying it with his sons and their wives.
7. The sole question for consideration in this case is whether the suit properties
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