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1960 Supreme(Ori) 92
HIGH COURT OF ORISSA
S.BARMAN, J., JJ.
Banchhanidhi Giri
Versus
Jema
Second Appeal No.155 of 1958
Decided On : 28-10-1960
B. K. Pal, for Appellants; M. Mohanty and A. K. Rao, for Respondents.
A Hindu family is presumed to be joint unless the contrary is proved, yet where it is admitted that the coparceners dealt with the properties on the basis that they separated themselves from the joint family, there is no presumption that rest of the coparceners continued to be joint.
Headnote:
PARTITION - HINDU LAW - SEVERANCE OF STATUS - NO PARTITION BY METES AND BOUNDS - EVIDENCE OF SEVERANCE OF STATUS - CONDUCT OF PARTIES - ALIENATIONS BY MEMBERS OF THE FAMILY - NO OBJECTION BY OTHER MEMBERS - INFERENCE OF SEPARATION - BURDEN OF PROOF - ONUS ON PLAINTIFF TO SHOW JOINTNESS.
Fact of the Case:
Plaintiff filed a suit for partition of the family properties belonging to the three branches of the joint family. The plaintiff claimed half share in the suit properties, on the allegation that Ladu, the third brother died in 1944 without any male issue; accordingly, Ladu's share survived to the other two branches of Bhagawan and Hadu; that of the three brothers (Bhagawan, Hadu and Ladu) Ladu died in jointness; accordingly, the plaintiff Banchhanidhi claimed half of the entire share of Ladu. The defendants 1 and 2 (sons of Hadu) had made alienations to third parties; defendants 3 and 4 (daughters of Ladu) had also made alienations to certain purchasers defendants 10 to 13; that the alienations, made by Ladus daughters defendants 3 and 4, are not binding on the joint family, because the daughters had no interest in their father Ladus property; with regard to the alienations made by defendants 1 and 2, the plaintiffs case is that they wrongfully claimed some of the properties as self-acquired properties.
Finding of the Court:
The court found that there was no partition by metes and bounds; that Ladu died in jointness: that the sales by Ladus daughters are without legal necessity; that Ladus share survived to the other two branches of the family, and accordingly the plaintiff, representing his father Bhagawans branch of the family, had acquired eight annas interest; with regard to Kha schedule properties it was found that they were not self-acquired by Hadus branch and therefore they belonged to the joint family; with regard to the sales by Ladus daughters defendants 3 and 4 to their purchasers defendants 10 to 13, it was held that the sales were without legal necessity and accordingly not binding on the plaintiff; that the alienations by defendants 1 and 2 to their sons are benami, and so the properties purported to have been so alienated are available for partition; accordingly the suit was decreed for partition with the declaration that the plaintiff was entitled to eight annas share in the joint family properties.
Issues: Whether, in the circumstances of the case, there was partition by severance of status, though not by metes and bounds.
Ratio Decidendi: The court held that there was a notional partition of the joint family by severance of status, based on the following evidence: * The plaintiff himself made his case claiming one-third share which is the first prayer in his plaint on the basis of severance of status of the family. * The statements in the body of the plaint itself, clearly show that the plaintiff primarily based his claim on severance of status of the family. * The proceedings before the Revenue Court in the Mutation case which started with a petition dated June 26, 1947 (Ext.1) by defendant No.2 Ramchandra claiming to be the adopted son of Ladu; the stand on alleged adoption, however, was disallowed by the Revenue Authorities, as appears from Ext.C - mutation order dated August 8, 1948 in favour of defendants 3 and 4 in the Mutation case No. 2158 of 1947-48, clearly finding that Ladu was separate in mess and property, and as such the question of survivorship to the other two branches did not arise. * Ext.N, order dated November 29, 1948 of the District Magistrate, Navagarh, made in Misc. Appeal No.41 of 1948-49, arising out of a petition for revision of the said previous order dated August 9, 1948, - also confirms the position that there was severance of status of the joint family. * Ext.H - Rayati Patta in favour of defendant No.9 Madhab Jena also confirms the aforesaid position with regard to the severance of the joint family. * The rent receipts Ext.B series, - showing payment of rent separately covering a period of continuously from 1950 until the suit was filed in 1954, - also indicate the severance of the joint family. * The further striking feature is that the alienation by the members of the family were being made from as early as 1948 inasmuch as defendant No.1 by a sale deed dated May 17, 1948 (Ext.K) sold certain properties to defendant No.8; thereafter defendants 3 and 4 also alienated in favour of defendants 9, 10 and 11 certain properties by sale deed Exts-A, A-3 and A-4 all dated August 18, 1948; thereafter the defendants 3 and 4 again sold to defendant Nos.12 and 13 certain properties by sale deed Exts.A-1 and A-2 both dated August 30, 1948. * No objection was ever taken by the appellants to the said alienations, until six years thereafter when the present suit was filed.
Final Decision: The appeal was dismissed.
JUDGMENT:- The question, - whether, in the circumstances of the case, there was partition by severance of status, though not by metes and bounds, - is the only point involved in this second appeal filed by the plaintiff and defendants 1, 2, 5 to 8 against a reversing decision of the learned subordinate Judge, Puri, whereby he set aside a decision of the learned Munsif, Navagarh, and decreed the plaintiffs suit for partition for his one-third share in the property.
2. A geneological table, showing the relationship of the parties, - other than the outsider purchasers from the members of the joint family, who are also defendants in the suit, - is set out as follows:
The facts are few and simple. The plaintiff Banchhanidhi filed a suit for partition of the family properties belonging to the three branches as shown above. The plaintiff claims half share in the suit properties, on the allegation that Ladu, the third brother died in 1944 without any male issue; accordingly, Ladus share survived to the other two branches of Bhagawan and Hadu; that of the three brothers (Bhagawan, Hadu and Ladu) Ladu died in jointness; accordingly, the plaintiff Banchhanidhi claimed half of the entire share of Ladu. The plaintiffs case, shortly stated, is this: the defendants 1 and 2 (sons of Hadu) had made alienations to third parties; defendants 3 and 4 (daughters of Ladu) had also made alienations to certain purchasers defendants 10 to 13; that the alienations, made by Ladus daughters defendants 3 and 4, are not binding on the joint family, because the daughters had no interest in their father Ladus property; with regard to the alienations made by defendants 1 and 2, the plaintiffs case is that they wrongfully claimed some of the properties as self-acquired properties.
The alleged cause of action for the suit was that Ladus daughters, by force, had taken possession of certain properties, and entries were caused to be made in the records in their names in respect of the properties; the plaintiff thereupon, filed the suit, in which his first prayer was for partition of the properties, the plaintiff for himself claiming one-third share interest in the joint family properties: in the alternative, he prayed that, in case Ladus daughters defendants 3 and 4 are found by the court, according to justice and equity, to have no interest in the suit properties, then he prayed for partition claiming half share in the properties.
3. The common defence, - taken by Ladus daughters defendants 3 and 4 and the purchasers from them defendants 10 to 13, - was that, although there was no complete partition, by metes and bounds, there was severance of status of the joint family 20 years ago, so as to entitle Ladus daughters defendants 3 and 4 to the properties which, they, in their own right, had sold to defendant purchasers 10 to 13. The defence of the second branch (Hadus branch) of the family, namely, of defendants 1, 2, 5, 6 and 7 is that the Kha schedule properties were self-acquired and not available for partition.
The trial court found that there was no partition by metes and bounds; that Ladu died in jointness: that the sales by Ladus daughters are without legal necessity; that Ladus share survived to the other two branches of the family, and accordingly the plaintiff, representing his father Bhagawans branch of the family, had acquired eight annas interest; with regard to Kha schedule properties it was found that they were not self-acquired by Hadus branch and therefore they belonged to the joint family; with regard to the sales by Ladus daughters defendants 3 and 4 to their purchasers defendants 10 to 13, it was held that the sales were without legal necessity and accordingly not binding on the plaintiff; that the alienations by defendants 1 and 2 to their sons are benami, and so the properties purported to have been so alienated are available for partition; accordingly the suit was decreed for partition with the declaration that the plaintiff was entitled to eight a
