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2017 Supreme(Ori) 551
IN THE HIGH COURT OF ORISSA : CUTTACK
D. DASH, J.
Puspalata Nanda & others – Appellants
Versus
Sarat Chandra Nanda & others – Respondents
RFA NO. 48 OF 2008
Decided on : 26-07-2017
For the Appellants :M/s. Biren S. Tripathy, M.K. Rath, J. Pati, R. Behera, Mahadev Mishra, Miss Mamata Mishra, R.K. Sutar, G.C. Bhuyan, S. Pradhan, B.S. Tripathy, Advocates.
For the Respondents:M/s. S.P. Mishra, S. Dash, S. Mishra, S. Nanda, Miss S. Mishra, A.K. Dash, S.K. Mohanty, S.S. Kashyap, M/s. M.M. Sahu, Sk. H. Reheman, T. Sethi, M/s. A.R. Dash, S.K. Nanda, B. Mohapatra, S.N. Sahoo, K.S. Sahoo, M/s. S. Mishra, B.S.Panigrahi, S.K. Sahoo, D. Priyanka, K. Kar, G.K. Bhuyan, A. Mishra, Advocates.
Headnote:1. JOINT FAMILY PROPERTY - Mere proof of the existence of joint family does not carry with it the presumption that the property held by any member of the said family which has some joint family property are the joint family property - There is thus no presumption that the family, because it is joint, possesses joint property - When in a suit for partition, a party claims any particular item of property held by any individual member is joint family property, the burden of proving that it is so, rests upon the party asserting the same- In case of a joint family, thus, mere existence of a nucleus is not enough to raise a presumption that all the properties in the hands of various members are as such joint family property available for all the members - Presumption comes to have its play only if the nucleus is found substantial in the factual settings and is such that its yield could provide in whole or at any rate in considerable part, the money necessary for acquiring the property in question.
Where, therefore, the facts established are that the family was joint and that it had some nucleus of joint ancestral property, and it being not established that the yield of the nucleus was sufficient for acquiring an item of property, the plaintiffs cannot be held to have discharged the initial burden that lay upon them to prove the jointness and the onus, therefore, would never get shifted unto the shoulders of the defendants to prove affirmatively that the item of property was the self-acquired property. The question of presumption can arise only when the facts are not known or there are gaps in the evidence which have been filled in with their aid. Where the facts and the circumstances leading to the acquisition of the properties and the extent and the manner in which the aid of ancestral and self-acquired properties were taken in their acquisition are known, there is no question of applying any presumption. (Paras - 12 & 14)
2. FAMILY ARRANGEMENT - Family arrangement is basically arrived at and entered into by the members of the family for settlement of the family disputes already running or likely to arise in future i.e. in anticipation - Also arrangement for preservation for family property or in the direction of maintenance of peace of security of the family is also regarded as family arrangement - For the validity of the family arrangement, there need not always be the existence of a family dispute and it is enough if such a dispute is anticipated and further, the settlement of some doubtful claim between the members of the family may provide a good consideration for a family arrangement.
Family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of others as they had previously asserted it to be the portions allotted to them respectively. That explains why no conveyance is required in this case to pass title from the one in whom it resides to the person receiving it under the family arrangement. (Para -17).
JUDGMENT :
This appeal has been filed by the unsuccessful plaintiffs challenging the judgment and decree passed by learned Civil Judge (Sr. Division), Bhubaneswar in Title Suit No. 302 of 1995 dismissing their suit.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. (a) The plaintiff no. 1 is the mother of plaintiff no. 2 to 5 and they are the legal heirs of late Ramesh Chandra Nanda.
The defendant nos. 1 to 5 are the brothers of Ramesh; defendant no. 6 is their sister and defendant no. 7 is son of defendant no. 6.
(b) The plaintiffs case is that the parties are the members of Hindu joint family and descendants of Dasarathi who is their common ancestor. It is stated that they had land in mouza Lunighat, Gopinathpur in the District of Ganjam in the State which is joint family properties, providing sufficient income. It is stated that there was surplus income from the joint family properties after meeting all such expenses and maintenance. Due to growing importance of the State capital, the members of the family therefore decided to acquire some properties there at Bhubaneswar. Then the husband of the plaintiff no. 1 was serving at Bhubaneswar in one Nationalised Bank as cashier. It is stated that the defendant no. 1 acted as the Karta of the family, sometime after Ganeswar grew old. He continued to enjoy the status as before after Ganeswar’s demise. It is further stated that one Lalita Devi who is the sister of Ganeswar had been divorced at her young age and was with them. The family members having decided to acquire some property at Bhubaneswar; in pursuant to the same, Dasarathi is said to have acquired Schedule-A land from the State Government by way of lease. This acquisition is said to have been made for and on behalf of the family; the expense being met from out of the surplus of the income from the joint family property. It is stated that Dasarathi got Schedule –A land on lease from the Government on 02.06.1958. However, since, Lalita was very close to Dasarathi, Plaintiffs specific case is that, despite the execution of one deed of gift by Dasarathi gifting the suit land in favour of Lalita, she had never accepted the same and on the other hand the property is said to have been treated all along as joint family property and dealt as such. It is further stated that from out of the surplus of the income from joint family property and the earnings by members from their profession as priests, pucca construction have been put up over schedule –A land wherein the husband of plaintiff no. 1 has contributed in a big way for the same. The building consists of three rooms in the ground floor; one big size room in the first floor and other anterooms. The plaintiffs state that after death of Ramesh, they felt neglected and resided in one room in the ground floor of that building. The defendants then began to create trouble with regard to such occupation of the room by plaintiffs. So the well wishers of the parties intervened. It is stated that after necessary discussion at the intervention of those well wishers, a family arrangement was made, one or two days before Dasshera in the year, 1992. The arrangement is said to be oral followed by allotment of entire Schedule-A property in favour of the plaintiffs with other conditions that the rent as would be realized from the big room in the first floor would enure to the benefit of all the members of the family and the rent from other rooms would be taken by the plaintiffs. In the said arrangement amongst the members of the family, the plaintiffs thus have been conferred with all the rights as above in so far as the Schedule-A property is concerned. It is also stated that the plaintiffs were not given any share in the family movables described in Schedule-D and other joint family properties in Schedule-B.
In view of the move by the defendants to dispossess the plaint
