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IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
R.H. ZAIDI, J.
Smt. Dharmawati Tewari and Others - Appellant
Versus
Prem Shanker Tewari and Others - Respondent
Second Appeal No. 1022 of 1982
Decided On : 02-12-1998
PARTITION - JOINT HINDU FAMILY PROPERTY - PRESUMPTION OF JOINTNESS - BURDEN OF PROOF - JOINTNESS OF FAMILY TILL ACQUISITION OF PROPERTY - AVAILABILITY OF NUCLEUS OF JOINT FAMILY PROPERTY - TREATMENT AND CONDUCT OF PARTIES WITH RESPECT TO PROPERTY IN DISPUTE - ADMISSIONS - FIXED DEPOSIT RECEIPT - KHEWAT - G.P.F. - INCOME FROM MONEY LENDING BUSINESS - SUFFICIENCY OF NUCLEUS FOR PURCHASE OF PROPERTY - PARTITION SUIT WITHOUT JOINING NECESSARY PARTIES - CONDUCT OF PARTIES - ORAL AND DOCUMENTARY EVIDENCE - CONCURRENT FINDINGS OF FACT - NO SUBSTANTIAL QUESTION OF LAW.
Fact of the Case:
Plaintiffs filed a suit for partition of their 4/35th share in a house in dispute, claiming it to be joint Hindu family property. Defendants contested, asserting that the house was Devi Shanker's self-acquired property, purchased in 1913, and that a partition deed was executed in 1961. The trial court found the property to be joint family property and decreed partition. The lower appellate court affirmed the findings.
Finding of the Court:
The court held that the presumption of jointness of a Hindu family places the burden of proving partition or cessation of jointness on the party asserting it. The courts below rightly presumed jointness and placed the burden on the defendants to prove otherwise. The evidence, including admissions, fixed deposit receipts, khewat, G.P.F., and income from money lending, established the existence of a joint family nucleus sufficient for the purchase of the house in 1913. The partition suit without joining necessary parties was not binding on the plaintiffs. The conduct of the parties showed that Devi Shanker treated the house as joint family property.
Issues: 1. Whether the property in dispute is joint Hindu family property or self-acquired property of Devi Shanker? 2. Whether the parties are related to each other as alleged in the plaint pedigree? 3. Whether the defence of defendant No. 9 is barred by estoppel?
Ratio Decidendi: The presumption of jointness in a Hindu family places the burden of proving partition or cessation of jointness on the party asserting it. The courts below rightly presumed jointness and placed the burden on the defendants to prove otherwise. The evidence established the existence of a joint family nucleus sufficient for the purchase of the house in 1913. The partition suit without joining necessary parties was not binding on the plaintiffs. The conduct of the parties showed that Devi Shanker treated the house as joint family property.
Final Decision: The appeal was dismissed with costs, upholding the concurrent findings of fact and holding that no substantial question of law was involved.
R.H. ZAIDI, J.
1. This is defendants' second appeal filed against the judgment and decree dated 5.2.1982 passed by IVth Additional District Judge, Lucknow in Civil Appeal No. 262 of 1972.
2. Plaintiffs-respondents filed Original Suit No. 594 of 1961 for partition for their 4/35th share in the house in dispute situated at Mirzapur. Deputy Raghubar Dayal Lane. Narhl Lucknow, described and specified by the boundaries given at the foot of the plaint. In Schedule A annexed to the plaint, following family pedigree was given :
Sheo Bhajan died 1907
Sukhdev Prasad died 1906
Mangal Prasad died in 1929
Daughter Savitri
Devi Shanker died 1936
Uma Shanker died in 1949
Krishnawati widow of Uma Shanker (Deft. 10)
Prem Shanker
(Plaintiff)
Jagdish Shanker
(Deft. 11)
Brahma Shanker
(Deft. 12)
Om Shanker
(Deft. 13)
Sheo Shanker
(Deft. 1)
Hari Shanker
(Deft. No. 7)
Naresh Shanker (Deft. 8)
Dinesh Shanker
(Deft. 9)
Ram Shanker
(Deft. 2)
Ravi Shanker
(Deft. 3)
Vishnu Shanker
(Deft. 4)
Girja Shanker
(Deft. 5)
Tej Shanker
(Deft. 6)
3. It was pleaded that the property in dispute was joint Hindu family property and that on the basis, of the aforesaid pedigree, plaintiff-respondents were entitled to above noted share in the same. It was pleaded that even after the service of notice dated 6.11.1957, defendants were not prepared to partition the property in dispute and to give share of the plaintiffs and were trying to oust the plaintiffs from the house in dispute, hence the suit.
4. Suit was contested by the defendant Nos. 1, 7, 8 and 9, who have filed their written statements denying the claim of the plaintiffs respondents. It was pleaded that the house in dispute was not the joint family property. It was acquired by Devi Shanker. out of his personal funds by means of a registered sale deed date 1.9.1913 for an amount of Rs. 2,150, from Thakur Bal Krishna and Lal Ji Lal. It was also pleaded that Original Suit No. 34/61 was filed by the defendant Nos. 1 to 6, which was decided in terms of compromise on 5.10.1961 and a registered partition deed was executed by the parties in pursuance of the said decree. Therefore, there was no question of further partition of the house in dispute. On the basis of the pleadings of the parties. trial court framed following issues :
1. Whether the property in suit is the joint Hindu family property or is the self acquired property of Devi Shanker?
2. Whether the parties are related to each other as alleged in the plaint pedigree?
3. Relief?
4. In case it is found that the property was purchased by Devi Shanker alone, was it treated as joint family property as alleged in para 7 of the plaint and para 22 of the written statement of defendant No. 13.
5. Whether the defence of defendant No. 9 is barred by estoppel as alleged in para 24 of written statement of defendant No. 13?
5. Parties produced evidence oral and documentary in support of their cases. Trial court after going through the evidence on record, recorded findings on relevant issues in favour of the plaintiffs. It was held that the parties were related to each other in the manner shown in the plaint. The pedigree given in the schedule annexed to the plaint was found to be correct. The house in dispute was found to be Joint family property and not self acquired property of Devi Shanker Tewari and that Devi Shanker and his sons and other members of the family always treated the house in dispute as joint family property. They were as such estopped from claiming the same as self acquired property of Devi Shanker. Having recorded the aforesaid findings, trial court decreed the suit for partition of 4/35th share in favour of the plaintiffs by its judgment and decree dated 13.7.1972. Aggrieved by the judgment and decree passed by the trial court, defendants appellants filed Civil Appeal No.
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