Smt. Dharmawati Tiwari And Others v. Prem Shanker Tewari And Others

R.H Zaidi, J.:— This is defendant's second appeal filed against the judgment and decree dated 5.2.1982, passed by IV Addl. District Judge, Lucknow in Civil Appeal No. 262 of 1972.

2. Plaintiffs respondents filed original Suit No. 594/61 for partition of their 4/35th share in the house in dispute situated at Mirzapur, Deputy Raghubar Dayal Lane, Narhi Lucknow, described and specified by the boundaries given at the foot of the plaint. In Schedule-A annexed to the plaint, following family pedigree was given—

3. It was pleaded that the property in dispute was joint Hindu family property and that on the basis of the aforesaid pedigree, plaintiffs respondents were entitled to above noted share in the same. It was pleaded that even after the service of notice dated 6.11.57 defendants were not prepared to partition the property in dispute and to give share of the plaintiffs and were trying to oust the plaintiffs from the house in dispute, hence the suit. Suit was contested by the defendants No. 1, 7, 8 and 9. Who have filed their written statement denying the claim of the plaintiffs-respondents. It was pleaded that the house in dispute was not the joint family property. It was acquired by Devi Shanker, out of his personal funds by means of a registered sale deed dated 1.9.1913 for an amount of Rs. 2150/- from Thakur Bal Krishna and Lal Ji Lal. It was also pleaded that original suit No. 34/61 was filed by the defendants No. 1 to 6 which was decided in terms of compromise on 5.10.1961 and a registered partition deed was executed by the parties in pursuance of the said decree. Therefore, there was no question of further partition of the house in dispute. On the basis of the pleadings of the parties, trial court framed following issues:—

1. Whether the property in suit is the joint Hindu family property or is the self acquired property of Devi Shanker?

2. Whether the parties are related to each other as alleged in the plaint pedigree?

3. Relief?

4. In case it is found that the property was purchased by Devi Shanker alone, was it treated as joint family property as alleged in Para-7 of the plaint and Para-22 of the written statement of defendant No 13.

5. Whether the defence of defendant No. 9 is barred by estoppel as alleged in Para-24 of written statement of defendant No. 13?

4. Parties produced evidence oral and documentary, in support of their cases. Trial court after going through the evidence on record, recorded findings on relevant issues in favour of the plaintiffs. It was held that the parties were related to each other in the manner shown in the plaint. The pedigree given in the schedule annexed to the plaint was found to be correct. The house in dispute was found to be joint family property and not self acquired property of Devi Shanker Tewari and that Devi Shanker and his sons and other members of the family always treated the house in dispute as joint family property. They were as such, estopped from claiming Page: 230the same as self acquired property of Devi Shanker. Having recorded the aforesaid findings trial court decreed the suit for partition of 4/35th share in favour of the plaintiffs by its judgment and decree dated 13.7.72 Aggrieved by the judgment and decree passed by the trial court, defendants-appellants filed civil appeal No. 262 of 1972 before the court below. The court below has also affirmed the finding recorded by the trial court and dismissed the appeal by its judgment and decree dated 5.2.1982 with costs. Challenging the validity of the judgment and decree passed by the court below, present second appeal has been filed by the defendant-appellants.

5. Learned counsel for the appellants has vehemently urged that the courts below have acted illegally in holding that the house in dispute was joint family property, particularly when the house in dispute was purchased by Devi Shanker, in his own name through registered sale deed dated 1.9.1913 out of his own funds and not out of the funds of joint Hindu family. It was urged that the findings recorded by the courts below are based on mis-reading of evidence and inspite of evidence to the contrary on the record, judgment and decrees passed by the courts below were, therefore, liable to be set aside.

6. On the other hand, learned counsel appearing for the contesting respondents supported the judgments and decrees passed by the courts below. It was urged that the present appeal is concluded by concurrent findings of fact, which are based on relevant evidence on record, which cannot be interfered with by this court in exercise of power under Section 100 of the C.P.C Learned counsel for the contesting respondents further submitted that no question of law, what to say substantial question of law is at all involved in the present appeal. Appeal is, therefore liable to be dismissed with costs.

7. I have considered rival submissions made by learned counsel for the parties and perused the record of the case carefully.

8. The court below after hearing the learned counsel for the parties and after perusing the record, formulated the following question for determination in the appeal.

1. Whether the property in suit is joint family property and was treated as such, or it was self acquired and exclusive property of Pandit Devi Shanker, father of defendants No. 1 and 7 and grand father of defendants No. 2 to 6, 8 and 9?

9. Parties belonged to a Hindu family and come down from common ancestors as it is evident from pedigree noted above, the correctness of which has not been disputed by the parties and has been up-held by the courts below. In Hindu law, there is presumption of jointness of a Hindu family. The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint, not only in estate but in food and worship also. The presumption, therefore is that members of a Hindu family are living in state union, unless contrary is proved. Reference in this regard may be made to Para-212 of Hindu Law by Mulla (Sixteenth Edition) and also to the decision in Bhagwan Dayal v. Mst. Reoti Devi AIR 1962 SC 287,Raghavamma v. Chandhamma AIR 1964 SC 136, and Bhagwati Prasad Shah v. Dulhin Rameshwari Kuer AIR 1952 SC 72. In the aforesaid decisions, it has been ruled by the Supreme Court that there is a presumption of jointness of a Hindu family and that burden to prove that jointness of the family came to an end or that there has been partition amongst the members of the family, is on the party, which has asserted the same. The courts below, therefore, Page: 231rightly proceeded to determine the controversy involved in the present case, by raising a presumption of jointness of the family and rightly placed the burden upon the shoulder of the contesting respondents to prove that jointness of the family came to an end before the property in dispute was alleged to have been acquired by Pandit Devi Shanker. The trial court critically examined the entire evidence oral and documentary on record and thereafter, recorded clear and categorical findings on the relevant issues in favour of the plaintiffs-respondents. The court below also rightly formulated the question for determination in appeal and rightly answered the same. The court below has considered all relevant aspects of the controversy viz continuity of jointness till the house in dispute was acquired, availability of nucleus of the joint family for purchase of the house in dispute, treatment and conduct of the parties with respect to the property in dispute. The court below also took into account the admissions made by the contesting respondents in Original Suit No. 130/142 of 1908 on 28.5.1908 contained in Ext. 105 and 107, fixed deposit receipt contained as Ext. 23 which were in the joint name of Devi Shanker, Uma Shanker and Shiv Shanker and rightly held that the jointness of the family was proved till 1936. While dealing with the availability of nucleus of joint Hindu family property, reliance has also been placed upon Ext. 45 and 46 Khewat for the year 1336 and 1359 F., whereby, it was proved that Mangal Prasad, Devi Shanker and Uma Shanker owned one anna three pai share in 266 Bighas and eight biswas sir land. Thus the family owned twenty bighas agricultural land. It has also taken into account availability of money deposited in G.P.F and income from money lending business. Other documentary and oral evidence produced by the parties was also critically examined by the court below and, thereafter it was held as under:—

“Thus the income from the Zamin dari of the Sir property, money lending business and the outcome of the G.P.F all were sufficient to form considerable nucleus for the purchase of the house in suit in 1913 from the joint family account. The house was purchased only for the sum of Rs. 2150/- and there was sufficient joint family estate and nucleus for the purchase of the house.”

10. In view of the aforesaid findings, which are based on relevant evidence on record, submission of the learned counsel for the appellants to the contrary cannot be accepted. The court below has rightly rejected the plea taken by the defendant-appellants regarding partition of the house in Original Suit No. 34/61. It was also rightly held that the partition suit or agreement, if any, without joining the plaintiffs and other necessary parties was of no use and will not be binding on the plaintiffs. The court below has also rightly taken into consideration the conduct of the parties particularly that of the defendants and has rightly held that there was ample oral and documentary evidence, which coupled with the facts and circumstances, go to prove, undoubtedly that the house in dispute was always treated by Devi Shanker as joint family property and the plaintiff was entitled to his share in the same.

11. Findings recorded by the courts below are all findings of fact, which are based on relevant evidence on record. I do not find any misreading or ignorance of any relevant evidence by the court below. This appeal is concluded by the concurrent findings of facts. It has got no merit. No substantial question of law is involved in it. In view of the aforesaid, this appeal fails and is dismissed with costs.

12. Appeal Dismissed.