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1980 Supreme(Ori) 59
High Court Of Orissa
K. B. Panda And J. K. Mohanty, JJ.
JAGANATH MISRA - Appellant
Versus
LOKANATH MISRA - Respondent
First Appeal 110 Of 1973
Decided On : 09/17/1980
A.MOHANTY, B.C.Mohanty, B.Pal, J.P.Das, N.Prusty, R.Ch.Mohanty
In a partition suit, the presumption of jointness in a Hindu family places the burden of proof on the defendants to establish severance of status.
Headnote:
PARTITION SUIT - JOINT FAMILY PROPERTY - SEVERANCE OF STATUS - PARTITION BY METES AND BOUNDS - PRESUMPTION OF JOINTNESS - BURDEN OF PROOF - JOINT FAMILY BUSINESS - SHOP - INVENTORY OF MOVEABLE PROPERTIES - CLAIM BY THIRD PARTIES - SETTLEMENT OF VESTED JOINT FAMILY PROPERTY - CROSS-OBJECTION - DISMISSAL OF APPEAL AND CROSS-OBJECTION.
Fact of the Case:
Plaintiff filed a suit for partition of joint family properties, claiming 3/10th share. Defendants contested the suit, claiming non-joinder of parties, non-inclusion of all properties in the suit, and that the plaintiff had already separated and relinquished his share. The trial court decreed the suit in part, giving the plaintiff 6/25th share of ancestral properties and 1/5th share of other properties.
Finding of the Court:
The court held that there was no need to make the co-sharers of the plaintiff's father parties to the suit as there had already been a partition between them by metes and bounds. The court also found that the plaintiff had not separated from the joint family and had not relinquished his share. The shop and the articles found therein were held to be joint family properties, and the claims of third parties to certain moveable properties were rejected. The court further held that the properties settled in the name of the plaintiff's mother after vesting under the O.E.A. Act were joint family properties.
Issues: 1. Whether the suit is bad for non-joinder of parties and non-inclusion of all properties. 2. Whether the plaintiff had separated from the joint family and relinquished his share. 3. Whether the shop and the articles found therein are joint family properties. 4. Whether the claims of third parties to certain moveable properties are valid. 5. Whether the properties settled in the name of the plaintiff's mother after vesting under the O.E.A. Act are joint family properties.
Ratio Decidendi: 1. The presumption of jointness in a Hindu family places the burden of proof on the defendants to establish severance of status. 2. The evidence on record did not establish that the plaintiff had separated from the joint family or relinquished his share. 3. The shop and the articles found therein were started with joint family funds and were, therefore, joint family properties. 4. The claims of third parties to certain moveable properties were not supported by sufficient evidence and were rejected. 5. The properties settled in the name of the plaintiff's mother after vesting under the O.E.A. Act were joint family properties as they were acquired from the joint family nucleus.
Final Decision: The appeal and the cross-objection were dismissed, and the parties were directed to bear their own costs.
J. K. MOHANTY, J.
( 1 ) DEFENDANTS 1 to 4 in a suit for partition have preferred this appeal. The case of the plaintiff is as follows ; plaintiff and defendants 1 and 2 are the sons, defendant No. 3 is the daughter and defendant No. 4 is the widow of late Purnananda Misra. The properties described in Schedules A and B (Moveable and immoveable properties respectively) belong to Purnananda Misra. Defendant No. 3 is married and living in her husband's house. Plaintiff and defendants 1, 2 and 4 are living in joint mess and property and there has been no separation between them either before or after the death of Purnananda. Plaintiff is a Government servant and is living outside the village with his family and defendant No. 1 is acting as manager of the joint family properties and defendants 1, 2 and 4 are enjoying the moveable and imrnoveable properties of the joint family. As the defendants refused to give due share to the plaintiff out of the income of the joint 'family properties the plaintiff filed the suit for partition of the joint family properties in order to get his share. The plaintiff claims 3/10th share out of the properties.
( 2 ) DEFENDANTS 1, 2 and 4 have filed a joint written statement and have contested the suit and defendant No. 3 has been set ex parte. The case of defendants 1, 2 and 4 is as follows: Raghunath Misra, the grandfather of plaintiff and of defendants 1 to 3 was the common ancestor. He had three sons, namely, Chandramani, Purnananda and Padmanav. There was no partition, at any time between the sons of Raghunath in respect of the properties left by raghunath, though there was severance of status and each of the branches is possessing some lands separately according to convenience. The immovable properties described in Schedule A are mostly ancestral properties of purnananda. Hence the suit is bad for non-joinder of parties as the branches of chandramani and Padmanav have not been impleaded as parties in the suit. The suit is also bad as all the properties have not been brought to hotchpot and as the properties described in Schedule A do not belong to Purnananda exclusively, those properties cannot be partitioned. The moveable properties described in Schedule B (which are the properties of the shop) belong to defendants 1 and 2 in which the plaintiff has no interest at all. So these properties should be left out of partition. Some of the properties mentioned in schedule B belong to third parties, who had kept their properties in the shop of defendants just before the filing of the suit in order to save those from the 'flood havoc. So the plaintiff cannot claim any interest in those properties. The owners of those properties have also filed separate petitions for taking back their properties. Out of the properties described in Schedule A some are acquired in the name of defendant No. 4 and as such the plaintiff has no interest in these properties and he cannot claim partition of those properties. Defendants' further plea is that the plaintiff was always living in the house of his 'father-in-law and therefore in January, 1961 the plaintiff took Rs. 3,000/ from Purnananda 'towards relinquishing his share of interest in the joint family properties and Rs. 500/- towards his share in the shop. The plaintiff relinquished all his interest in the joint family properties and in the shop and left his father's place with some moveable properties. Thereafter the defendants are living jointly and as the old house was damaged, they have constructed a new building out of their own 'funds. The plaintiff has got no interest in the said building. As the plaintiff has already got separated and taken money towards his interest in the properties, he has got no cause of action to bring this suit.
( 3 ) IN the trial court as many as 15 issues were framed. Parties adduced both oral and documentary evidence. On behalf of the plaintiffs, four witnesses were examined and defendants examined 16 witnesses. The trial court after
