The existence of a joint Hindu family does not automatically presume property ownership as joint family unless affirmative proof of joint family funds is established.

09/06.02.2019

1. Heard Mr. S. K. Sharma, counsel appearing on behalf of the appellants.

2. Heard Mr. Kundan Kr. Ambashta, counsel appearing on behalf of the respondents.

3. Counsel for the appellants submits that the present Second Appeal has been filed against the concurrent finding of facts, but there are questions of law which are involved in this case which are as follows:-

(a) Whether the learned courts below have failed to consider that admittedly the family of the plaintiffs and the defendants was a joint family and were having joint family properties, therefore, unity of title was required to be presumed and onus was on the defendants to show that the property standing in the name of defendant no. 2 (Manju Devi) vide sale deed no. 67 dated 03.01.1985 was her self- acquired property?

(b) Whether the learned courts below have failed to consider that there was an admission on the part of the defendants regarding agreement of sale vide registered agreement being deed no. 3281 dated 24.06.1982 to recover the property back, upon payment of consideration amount of Rs. 2000/- which was executed on the same day on which registered sale deed no. 3280 dated 24.06.1982 was executed?

4. From the perusal of the judgments passed by two Courts, this Court finds that the plaintiffs had filed a suit for partition to the extent of their share in connection of the suit property which included one property covered by sale deed no. 67 dated 03.01.1985 executed by one Bishwanath Karmkar in favour of defendant no. 2, namely, Manju Devi wife of Harihar Mishra.

5. The case of the plaintiffs as per the plaint was that one Dila Mishra had two sons namely Chintaman Mishra and Jinda Mishra. Chintaman Mishra died leaving behind his sons Raghunandan Mishra, Yadunandan Mishra, Harihar Mishra and Sharda Mishra. Raghunandan Mishra died leaving behind the widow Maheshwari Devi, one son Raj Kumar and two daughters Savita Kumari and Malti Devi. Manju Devi is the wife of Harihar Mishra. Jinda Mishra died leaving behind him his son Sheo Kumar Mishra. It is stated that Jinda Mishra and Chintaman Mishra and their father were members of joint Hindu Family governed by Mitakshara School of Hindu Law.

6. The specific case of the plaintiffs was that Chintaman Mishra executed the sale deed no. 3280 dated 24.06.1982 in favour of Vishwanath Karmkar with respect to land of khata no. 180 plot no. 1942 area of .80 acres out of 1.20 acres. On the same day i.e. on 24.06.1982, Vishwanath Karmkar executed a registered agreement of sale to re- convey the land of the aforesaid sale deed to Chintaman Mishra vide deed no. 3281 dated 24.06.1982 upon payment of Rs.2,000/- which was the consideration amount of the sale deed.

It is further the case of the plaintiffs that Chintaman Mishra arranged Rs. 2,000/- contributed by plaintiffs to the extent of Rs. 1,000/- and Rs. 1,000/- was contributed by Harihar Mishra and after making the payment of the consideration amount a sale deed no 67 dated 03.01.1985 was executed by Vishwanath Karmkar in favour of Manju Devi wife of Harihar Mishra. It is asserted that the sale deed no. 67 dated 03.01.1985 was for and on behalf of joint family and the plaintiffs and the defendants remained in joint possession over the land mentioned above. It was also alleged that Manju Devi wife of Harihar Mishra has no separate share and she was made defendant no. 2 in the suit since the sale deed no. 67 dated 03.01.1985 was in favour of Manju Devi wife of Harihar Mishra and Harihar Mishra was the defendant no.1.

7. The defendants by filing the written statement had categorically stated that the land purchased by defendant no. 2 through sale deed no. 67 dated 03.01.1985 was a self-acquired property of defendant no. 2. Accor