Back
1985 Supreme(MP) 229
High Court Of Madhya Pradesh
C. P. SEN, S. AWASTHY
JHANGLOO - Appellant
Versus
TULARAM - Respondents
First Appeal 6 Of 1982
Decided On : 03/29/1985
A.K.PANDEY, D.M.Dharmadhikari, M.B.SAHU, N.S.KALE
The burden of proof lies on the party who asserts that there was a partition, and the cumulative effect of all the facts and circumstances must be evaluated to determine if there has been a partition.
Headnote:
PARTITION - JOINT HINDU FAMILY PROPERTY - BURDEN OF PROOF - SEPARATION OF STATUS - ACQUISITION OF PROPERTY WITH JOINT FAMILY FUNDS - AMENDMENT OF PLEADINGS - ADMISSIBILITY OF ADDITIONAL EVIDENCE - RELEVANCE OF REVENUE RECORDS - INFERENCE OF PARTITION - JOINTNESS - FAMILY SETTLEMENT - RELIABILITY OF WITNESSES - CORROBORATION OF EVIDENCE - DISMISSAL OF APPEAL.
Fact of the Case:
Plaintiffs, legal representatives of Manglu, filed a suit for partition and possession of half share in agricultural lands, houses, thrashing-floor, and wells, for payment of mesne profits, and partition of movable property. Defendants, sons, grandsons, and daughters-in-law of Shivsingh, claimed separation of Swaroopsingh and acquisition of properties by Shivsingh and Swaroopsingh from their own income.
Finding of the Court:
The court found that Manglu and Shivsingh remained joint and there had been no partition of the joint family property in suit. All the properties shown in Schedules A to D were held to be joint undivided Hindu family properties liable to partition in equal shares between the two branches.
Issues: 1. Whether the burden of proof lies on the plaintiff to prove that there was no partition or on the defendants to prove that there was a partition. 2. Whether the cumulative effect of all the facts and circumstances demonstrates that the brothers had separated long back and there had been a partition as pleaded by the defendants. 3. Whether a member who acquires property with joint family funds after severance of status in a joint Hindu family can claim the property as his individual property not liable to be partitioned. 4. Whether the application for amendment of written statement should be allowed to change the stand taken by the defendants earlier and admit that the land in Banskanta was also the ancestral property and that it was partitioned between Swaroopsingh, Shivsingh, and Manglu. 5. Whether the documents sought to be produced as evidence by the defendants under Order 41, Rule 27, C.P.C. are relevant and admissible. 6. Whether the circumstances relied upon by the defendants establish that there had been a partition between the three brothers as pleaded by them. 7. Whether the evidence led by the plaintiff is reliable and sufficient to prove jointness and the absence of partition.
Ratio Decidendi: 1. The burden of proof lies on the party who asserts that there was a partition. 2. The cumulative effect of all the facts and circumstances must be evaluated to determine if there has been a partition. 3. A member who acquires property with joint family funds after severance of status in a joint Hindu family cannot claim the property as his individual property not liable to be partitioned. 4. The application for amendment of written statement should not be allowed if it seeks to change the stand taken earlier and admit facts contrary to the evidence on record. 5. The documents sought to be produced as evidence must be relevant to the controversy in suit and must establish the plea of the defendants. 6. The circumstances relied upon by the defendants, such as separate living, separate cultivation of lands, and separate payment of taxes, are not conclusive evidence of partition. 7. The evidence led by the plaintiff, including the testimony of witnesses and documentary evidence, is reliable and sufficient to prove jointness and the absence of partition.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS is defendants' appeal against the judgment and decree (preliminary) passed against them in Civil Suit No. 19-A/80 of the Court of District Judge, Raipur, dt. 1-4-1982, for partition and possession of half share in the agricultural lands, houses, thrashing-floor and wells, for payment of mesne profits, - past and future - and also for partition of the movable property.
( 2 ) THE plaintiffs alleged that one Ananda Sahu was the ancestor who left behind him three sons - Ramcharan, Shivsingh and Swarupsing. Ramcharan's only son Manglu, the original plaintiff, died during the pendency of the suit. The present plaintiffs-respondents are the legal representatives of the said Manglu. Shivsingh died in the year 1948 and his widow, I in the year 1970. The defendants are the sons, grandsons and daughters-in-law of Shivsingh. Swarupsingh or his heirs have not been impleaded in the suit as it is alleged that he I had separated about 75 years ago and had no claim in the ancestral property thereafter.
( 3 ) THE case as pleaded by the plaintiff is that Ramcharan and Shivsingh remained joint on separation of Swarupsingh. Manglu, a minor, on the death of his father Ramcharan, was left to the care of his widowed mother who was taken by Shivsingh as his wife. He, therefore, lived with his widowed mother Suniyabai and Shivsingh. Out of the ancestral property in their hands, agricultural lands in villages Sale Bhata and Tendukona were acquired. About 35 years prior to the filing of the suit, there was an arrangement in the family by virtue of which 4 acres of land of village Banskanta and 12 acres of land as well as a house at village Kumhari Muda were I given to the plaintiff Manglu for his subsistence. Those lands were mutated in his name in the revenue records on 9-12-1972. Manglu was beaten by the defendants and was ousted from the house and lands which were given to him under the family arrangement. He, therefore, filed a suit for partition and separate possession of his share being half in the property shown in Schedules A to D filed with Use plaint and claimed mesne profits at the rate of Rs. 15,000/-per year for 3 years next before the date of filing the suit. Mesne profits pendente lite and share in the moveable property were also claimed.
( 4 ) THE defendants admitted the relationship but pleaded that Ananda (ancestor) had agricultural lands in village Ninda only. After the death of Ananda, Shivsingh and Swarupsingh handed over the property to their elder brother Ramcharan and relinquished their share in the joint Hindu Family property. They both came to the village Banskanta about 70 years ago and they earned their livelihood there and purchased lands separately out of their own income. The lands shown in Schedule B were purchased by the father-in-law of defendant No. 1 in his name in the year 1943. Swaroopsingh purchased 11. 16 acres of land in village Banskanta and Shivsingh 10. 49 acres of land in village Banskanta and 45. 19 acres of land in village Kumhari Muda. Ramcharan had 3. 74 acres of land in village Nisda. Thus, it is stated that prior to 1921-22, the three brothers had separated and the lands in possession of either Shivsingh or Swaroopsingh are their self-acquired properties not liable to partition. For Manglu, it is pleaded that he came to live in Banskanta and purchased 7. 29 acres of land in village Kumhari Muda. The alleged marriage of Shivsingh with Suniyabai, widow of Ramcharan, is also denied. The joint requisitions as alleged by the plaintiff were also denied by the defendants.
( 5 ) THE defendants further pleaded that in the year 1970, the defendants came to know that Manglu surreptitiously got his name recorded in the revenue papers as joint owner with the defendants. They got those entries corrected. The allegation regarding dispossessing Manglu by them has also been denied. They claim to be in possession of those lands throughout. A plea of adverse possession is also raised in the altern
