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2012 jk- fu 323 o 2012 RN 323
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A. K. Shrivastava, J.
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Gopi Nath v. Shiv Prasad and others
f}rh; vihy Øekad 389 lu~ 1994 ¼tcyiqj½] fu.khZr fnukad 6-3-2012A
Second Appeal No. 389 of 1994 (Jabalpur);
Decided on 6.3.2012.
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(1) Hindu Law - by Mulla -- Art.231(1) and (2) -- joint Hindu family -- property purchased from income of joint property in name of eldest brother -- it was pleaded and proved by evidence -- burden of proof -- is upon the person who pleaded his self acquired property -- property being his self acquired not proved -- merely name of elder brother in sale deed -- it will not make any difference -- property cannot be treated as his self acquired property -- property is of H.U.F. property. [Paras 12 to 14
(2) Hindu Law - joint family -- Karta of -- in life time of father -- elder son may be Karta of family. AIR 1976 SC 1953 and AIR 2008 SC 673 followed. [Para 15
(3) CIVIL PROCEDURE CODE., 1908 - S.54, O.20 R.18 -- M.P. Land Revenue Code, 1959 -- S.178 -- civil suit for partition of share amongst brothers -- land purchased from income of joint property in name of elder brother -- it was pleaded and proved by evidence -- merely mutation or name of elder brother in sale deed -- it will make no difference -- property being self acquired property not proved -- suit rightly decreed -- lower appellate Court erred in reversing decree of trial Court. [Paras 12 to 14 and 18
(4) Madhya Pradesh Land Revenue Code, 1959 - S.178 -- civil suit for partition -- land purchased from income of joint property in name of elder brother -- it was pleaded and proved by evidence -- merely mutation or name of elder brother in sale deed -- it will make no any difference -- such property is of HUF property -- suit rightly decreed -- lower appellate Court erred in reversing decree of trial Court. [Paras 12 to 14 and 18
(5) Evidence - principle of -- burden of proof -- property purchased from income of HUF property -- it was pleaded and proved by plaintiff -- burden of proof shifts upon defendant -- first appellate Court wrongly placed burden of proof on plaintiff. [Para 20
1. This second appeal has been filed at the instance of one of the plaintiffs against the judgment of reversal passed by learned First appellate Court dismissing the partition suit of the plaintiffs.
2. The admitted facts are that plaintiffs Ramphal and Gopinath are real brothers and they are also real brother of first and second defendants namely Shiv Prasad and Ramgarib. Defendant No.3 Suresh Prasad is the son of first defendant Shiv Prasad.
3. According to the plaintiffs, the suit property, the description whereof has been mentioned in para 3 of the plaint, is the property of HUF and except survey No.245 all the other disputed lands were purchased vide registered sale-deed dated 22.11.1951 from one Rama Govind S/o. Bhola Singh for a consideration of Rs.700/- At the time of purchasing of the said land and earlier to it all the brothers were residing jointly and their father were also residing jointly. For the convenience, the name of first defendant Shiv Prasad was got mutated, being the eldest brother, in the revenue record. From the funds of HUF major portion of suit property was purchased vide registered sale-deed dated 22.11.1951. According to the plaintiff, survey No.245 was purchased in the month of June, 1972 in the absence of first defendant from the income of HUF and it is also the property of HUF. According to plaintiff, although the said property was purchased in the name of first plaintiff Ramphal and mutation was also made on 30.07.1992 in his exclusive name, but, the said property is of HUF.
4. Further the case of the plaintiffs is that after the death of father, the partition took place on 24.12.1983 and the shares were allotted to each coparcener. After partition, the plaintiffs who are real brothers are residing separately while first and second defendants are residing separately. The defendant No.3 who is son of defendants is also residing along with first and second defendants. Further plaintiffs have pleaded that after measuring the entire suit property a partition was effected by meets and bounds but thereafter the defendants tried to interfere in the share which fell in the plaintiffs and hence they have filed a suit for partition praying that they are jointly entitled to half share in the entire suit property and are also entitled to obtain separate possession thereof.
5. The defendants filed a joint written-statement and refuted the plaint averments. In para 2 of the written-statement it has been specifically pleaded that defendant Shiv Prasad at the age of near about 18 years was employed in Police Department in the year 1946 and was not residing in Rewa and was residing in State of Uttar Pradesh where he was serving. He retired in the year 1979 and came back to his native village. Further it has been pleaded that from his own earning and savings the first defendant Shiv Prasad purchased the lands on 22.11.1951 and hence he is exclusive owner of those lands. According to defendants, the money which first defendant was saving from his salary was being sent to his native place by money-order to first plaintiff Ramphal and from the savings of first defendant Shiv Prasad on 22.11.1951 the major portion of suit property was purchased in his name and hence, it is his self-acquired property. The other averments made in the plaint were denied and it has been prayed that suit of plaintiffs be dismissed.
6. Learned Trial Court framed necessary issues and after recording the evidence of the parties, decreed the suit and passed a decree of partition declaring that the plaintiffs are jointly entitled for half share in the suit property and are also entitled for separate possession upto their share. The first appeal which was filed by the defendants has been allowed by the impugned judgment and decree and suit has been dismissed by learned First Appellate Court.
7. In this manner this second appeal has been filed by plaintiff which was admitted on 8.11.1994 on the following substantial questions of law:–
“1. Whe
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