1982 Supreme(MP) 166

P. D. Mulye, J.
Ayodhya Prasad v. Narsingh Datt.
F. A. No. 22 of 1979 (I); Decided on 3-3-1982.

Headnote:(1) Hindu Law - adoption -- proof of -- no authority by deceased husband proved --independent witness not examined -- treating like a son not sufficient to infer legal adoption.

        (2) Hindu Law -- family property -- joint family is not sufficient to infer joint family property -- possession of nucleus.

        (3) Hindu Law - nucleus -- sufficiency of raising of construct for over joint family property -- sufficient nucleus for construction not proved -- construction cannot be presumed to be joint family properly in absence of such intention.

        (4) Hindu Law -- joint family property -- possession by one member -- he is constitution of India -- sharer and a constructive trustee on behalf of others.

        The learned counsel for the appellant concentrated his arguments on the fallowing points.

        (1) That the learned trial Court has committed an error in bolding that adoption of the plaintiffd`respondent No. I Narsingh Datt bas not been proved.

        (2) That the learned trial Court has committed an error in holding that the suit property. namely house No. 20, Warehouse Road. Indore, as it stands today after reconstruction is also an ancestral property.

        (3) That the plaintiff Narsingh Datt was ousted from the family in which he was born years ago and the suit on that basis was barred by limitation.

        Held : It must be noted that admittedly the parties are governed by Mitakshara school of Hindu Law. The appellant in his written statement or in his evidence bas nowhere stated that Shivchand during his life time had authorised his widow Parwati Bai to take the plaintiff Narsingh Datt in adoption. It is somewhat surprising that when Shivchand during his life time had taken the plaintiff from Indore to Sandalpur with the idea and purpose of taking him in adoption, why no adoption took place during his life lime. It is also apparent that even right up to the time when application was submitted by Parwati Bai or the plaintiff for getting his name mutated in the property left behind by Shivchand it is nowhere mentioned therein that he is claiming his right of succession as an adopted son but on the contrary the same was claimed as a near relation.

        The witnesses examined by the appellant on the question of adoption are obviously interested even DW 7 Parmeshwar Vallabb Sharma, who is a close relation of the appellant appears ot be a chace witness. That Apart the letter dated 5-4-54 Ex. D-6 sent by Sohanlal to Tashsider Khategaon creates doubt about the averment of adoiton as it is he who is said to have given the plaintiff in adoption to Parwatibai, It is, therefore, difficult to agree with the submission of the learned counsel for the appellant on this point that adoption in this case has been satisfactorily proved [Please see AIR 1978 SC 1051; G. Appaswami Chettiar v. S.R. Saragapani Chettiar & AIR 1980 SC 2008 Smt. Shanti Bai v. Smt Miggo Devi].

        it is likely that Shivchand and after his death his widow Parwati Bai might have treated the plaintiff like a son, but in absence of any clinching proof about the factum of adoption it can not be held that the plaintiff was the legally adopted son of Shivchand. It, therefore, cannot be said that the plaintiff had really abandoned all his claims in the property of his natural father and succeeded to the property of Shivchand in preference to his widow Parwati Bai obviously as the adopted son.

        The burden lay on the plaintiff to prove that the said disputed property is a joint family property as no presumption can be drawn that the joint family also had joint family property. Even the plaintiff has admitted that before the reconstruction of the suit property, it was in a dilapidated condition and there is no reliable evidence adduced by the plaintiff to show that even in that condition it fetched some income. On the contrary it is evident from the evidence adduced by plaintiff himself that the principal source of income of Sobanlal was the offerings received al the said temples and with that income he used to maintain the family. It is also clear that even the appellants Li"Velihood before he reconstructed the suit house depended upon the offerings. which he received at the temple as he is neither educated nor is carrying on any business or has got any service.

        Apart from the municipal Khasra entry the plaintiff has not led any other documentary evidence to show how the land on which the pre-sent house is co.1structed as also the Temples which are renovated, came into the. possession of Ramkaran, the grand father. In fact even the defendant· appellant has no personal knowledge about the same except that his case has been that prior to the present construction there were two Kulcha johopdis on the said and that these two temples also stood in a dilapidated condition and for the renovation of the temples he collected money from the people though there is no specific evidence adduced by him on that point. it is no doubt true that the appellant himself had no such funds of his own which can be said to have been invested by him in reconstructing the house on the open land, but it is not the case of the plaintiff that the open land or the earlier construction thereon fetched any income which continued to remain with Sohanlal and after his death the appellant and that it is out of that nucleus that the appellant had reconstructed the suit house in which the plaintiff can claim any snare as a member of the joint family [Please see AIR 1969 SC, 1976 Mudigowdappa v. Ram Chandra Rewgodwa; 1975 MPLJ 156 Kaslurchand Chholmal, Raipur v. Kapurchand Kewalchand, Raipur and 1973 MPLJ 188 Gyarsi Bai Moolchand v. Jamnalal Muolchand].

        In a case when it is established that the family possessed sufficient property which from its nature and relative value could form nucleus from which the property in question could be acquired, that the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the funds of the joint family. Where a member of the joint family raises a construction with his separate funds on a plot which was the joint family property as in the present case admittedly the open plot was a joint family property, there is no presumption that the new construction also becomes joint family property. The other member can claim partition only if joint family funds are used for the construction or there is sufficient nucleus from which funds for the construction could be raised or there is clear intention to waive his separate claim to such new construction or to treat the same as joint family property by the member constructing it.

        In the present case the plaintiff himself has come with a case that the new house was constructed by the appellant after borrowing a loan, of Rs. 8000/- from the Stare Government which according to the plaintiff has been repaid within the income derived from the reconstructed property. But it is not his case that before construction the very property, namely the open land beneath it was mortgaged against the said loan so that it could form the nucleus. Therefore, I find the plaintiff has succeeded in proving that the open and prior to the reconstruction of the suit house in its present form was a co-parcenery property in which the plaintiff has a share as the son of Sohanlal, but so far as the present reconstructed house is concerned, the plaintiff cannot claim any share in it nor is he entitled to ask for accounts of the income received by the appellant.

        As regards the appellants contention that the plaintiffs suit was barred by limitation on the principles of ouster, I see no force in this contention as the necessary evidence to come to that conclusion is wanting in this case. Simply became the plaintiff went and continued to stay with Shivchand at Sandalpur would not necessarily lead to the conclusion that he was ousted either by Sohanlal or after his death by the appellant from his natural family as it is not the case of the appellant that thereafter he never came to Indore or stayed with Sohanlal or after him with the appellant. It is well settled that mere non-participation in the rent and profits of the land of a co-parcener does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the co-sharer in possession would become constructive trustees on behalf of the co-sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustees. AIR 1978 SC 1051, AIR 1980 SC 2008, AIR 1969 SC 1976, 1975 MPLJ 156.1973 MPLJ 188 and AIR 1981 SC 77 relied on. Appeal partly allowed.