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Madhya Pradesh High Court
G. P. SINGH,B. R. DUBE
Kasturchand Chhotmal - Appellant
Versus
Kapurchand Kewalchand - Respondent
Decided On : 11/07/1974
There is no presumption that a Hindu family, merely because it is joint, possesses joint family property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as co-parcenary property But, if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This presumption is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. AIR 1966 PC 1076 and AIR 1947 PC 189 relied on. [Para 7
(2) Hindu Law-Joint Hindu family-business carried by a member-presumption.
There is no presumption that a business carried on by a member of a joint family, is joint family business. Nor is there any presumption that a business carried by such a member in p2ftnership with a stranger is joint family business. There is no presumption that business standing in the name of, or started by even a manager is joint family business, but if the joint family funds are utilised in opening a new branch then the new branch will be regarded as part of the old business. [Para 8
(3) Hindu Law-coparcenary property-one coparcener has no right to make a will-it will pass by survivorship.
(4) Will-coparcenary property-right to make will.
A member of joint Hindu family has no right to make a will with respect to the coparcenary property or any part thereof because the property passes by survivorship on the death of the coparcener. AIR 1972 SC 1279 relied on. [Para 9
(5) Civil P. C., 1908-O.6, R.1-pleading-specific averment in pleadings-party cannot be allowed to go against it. [Para 10
(6) Registration Act, 1908-S.17 -document creating interest in presenti-requires registration.
Where a document styled Vyavastha Patra purported to create an interest in presenti, it requires registration. AIR 1966 SC 1836 relied on.
(7) Hindu Law-family arrangement-rights of one party affected cannot operate as family arrangement.
Where the legitimate rights of a party were going to be affected, it could not be said that the -consideration for the document was to ensure amity and good will amongst the parties. Such document does not fulfil the essential requisites of a family arrange men c. AIR 1972 SC 1279 referred to. [Para 15
A family arrangement which is for the benefit of the family generally can be enforced in a Court of law. But before the Court would do so, it must be shown that there was an occasion for effecting a family arrangement and that it was acted upon. [Para 16
If the document is even acted upon it should be acted upon as treating it to be a valid document. [Para 18
(8) Evidence Act, 1872-S. 114 -party personally knowing circumstances-not offering for cross-examination-adverse inference.
(9) Practice-party when should offer itself as a witness.
It is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of the case. AIR 1931 Bom. 97 relied on. [Para 20
(10) Contract Act, 1872-S. 16- undue influence-pardanashin lady of 75 years suffering from cancer-under the protection of a person in whose favour gift executed-undue influence inferred-burden of proof.
An old pardanashin women of 75 years, suffering from cancer, went to live with the donee, and without taking in confidence her adopted son, made the gift-deed in favour of the donor and by her subsequent acts deprived her adopted son of his legitimate rights, undue inference may be inferred.
In these circumstances, the onus of proof was on the donee to prove that he did not use his position to obtain advantage from the donor. AIR 1967 SC 878 relied on AIR 1947 PC 169, AIR 1949 PC 272, AIR 1930 PC 21 and AIR 1923 PC 73 referred to. [Paras 21, 22 and 23
B. R. DUBE, J. : -This is defendant's appeal against the judgment and decree passed by the learned Second Additional District Judge, Raipur, in civil suit No. 4-A of 1966, allowing respondent's claim for possession of the land described in Schedule 'C' of the plaint and for partition and separate possession of one-half share in the property as shown in Schedule 'A' of the plaint, together with mesne profits.
2. Chhotmal Dassani and Kewalchand Dassani were brothers. These two brothers separated in the year 1912, and a registered partition deed was executed on 4-10-1912. Chhotmal Dassani had no issue. He, therefore, adopted the appellant Kasturchand, who was the eldest son of Kewalchand. The respondent Kapurchand is the vounger son of Kewalchand. The parties are governed by the Banaras School of Hindu Law. Alter the partition, the branches of Kewalchand and Chhotmal became separate in all respects. Chhotmal executed a document dated 9-6-1952, styled as "Vyavastha Patra". He died a few days thereafter, leaving his widow Sonibai and adopted son (the appellant). These facts are not disputed.
3. Chhotmal, at the time of his death, left 81.71 acres of land in village Rawanguda, district Raipur and two houses, one in the village Rawanguda and another in village Pipariya, as mentioned in Schedule 'A' of the plaint Chhotmal had executed a Patta dated 20-2-1948, in the name of his wife, Soni Bai, in occupancy rights with respect to 29.60 acres of land situated in village Rawanguda, district Raipur. The said land is shown in Schedule 'B' of the plaint. The case of the respondent (plaintiff) was that the property described in Schedule 'A' was the self-acquired property of Chhotmal. He executed a will dated 9-6-1952, styled as 'Vyavasta Patra' according to which the property mentioned in Schedule 'A' was bequeathed in equal shares to the respondent and the appellant. The bequest was to take effect after the death of Chhotmal as well as the death of his widow, Sonibai, if she survived. As Chhotmal died in June, 1952, leaving his widow, Soni Bai, she entered into possession of the said property. Accordingly, she remained in possession of the said property till her death which took place on 30-6-1961. Thus, under the said will, executed by Chhotmal Dassani, the respondent claimed one-half share in the property shown in Schedule 'A'. In the alternative, the respondent claimed 36.00 acres of land out of 81.71 acres of land shown in Schedule 'A' on the ground that Mst. Soni Bai had made a gift of that land under a registered gift deed dated 25-1-1961. It was averred that Soni Bai, being the widow of late Chhotmal Dassani succeeded to the property of her husband and her right title and interest having become absolute, on the coming into force of the Hindu Succession Act, 1956, she was competent to make a gift of her share in those lands. It was further averred that Mst. Soni Bai, by virtue of the above gift-deed, also gifted 19.06 acres of land shown in Schedule 'C', out of the land shown in Schedule 'B', which she was separately holding under Bhumiswami rights. The respondent, therefore, claimed one-half share in the agricultural land and the two houses shown in Schedule 'A' or in the alternative, 36 acres of land out of the land shown in Schedule 'A', plus 19.06 acres of land as shown in Schedule 'C', total 55.06 acres, and mesne profits.
4. The appellant contested the suit on the grounds that the property in the hands of Chhotmal was not his self-acquired property but it was a coparcenary property and therefore, he had no right to execute the will dated 9-6-1952, which was styled as "Vyavastha Patra". It was further averred that as the said document gave only a life estate to Mst. Soni Bai, she had no right to make a gift of any property which she got from Chhotmal. As regards 29.60 acres of land at Rawanguda standing in the name of Mst. Soni Bai, the appellant's case was that Chhotmal executed a nominal patta in favour of Soni Bai to sa
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