Second Appeal No.403 of 1993

3rd July, 2008

Petitioner Counsel: Mr. C. S. KAPTAN
Respondent Counsel: Mrs. VIJAYA THAKARE,Mr. K. R. LAMBAT

Cases Cited:
Srinivas Krishnarao Kango Vs. Narayan Devji Kango, AIR 1954 SC 379 [Para 7]
Makhan Singh Vs. Kulwant Singh, 2007 ALL SCR 1224 : (2007)10 SCC 602 [Para 7]

JUDGMENT

JUDGMENT :- This appeal at the instance of original defendants assails judgment and order dated 23rd September, 1993 passed by the Additional District Judge, Gadchiroli in Regular Civil Appeal No.30 of 1993 reversing the judgment and decree passed by the Civil Judge, Junior Division, Gadchiroli dated 29th March, 1985 in Regular Civil Suit No.18 of 1979 and there by decreeing the suit of present respondents/original plaintiffs.

2. It is admitted position on record that original plaintiffs Dharma and Ganpat and defendants Dhondu and Mohan are real brothers. Defendant No.3 Janabai is wife of defendant no.1 Dhondu; defendant no.4 is wife of defendant no.2 Mohan while defendants no.5 and 6 Vasant and Maroti are sons of defendant no.1 Dhondu. Respondents/plaintiffs averred in the suit that their grand-father Dharma belonged to village Kunghada, Tahsil Gadchiroli and since it was difficult for him to meet both ends together, their father Bhanu left village Kunghada for village Kurul where he settled and constructed residential house and purchased fields bearing survey nos.31 and 5 situated at village Nimgaon, Revenue Circle Chamorshi as well as field survey nos.187/19, 197/4K, 317/3, 197/8 and 317/1 situated at mouza Kurul, Revenue Circle Chamorshi, Tahsil Gadchiroli out of his self-earning. Besides plaintiffs and defendants, Bhanu had one more son by name Mangru and daughter Motabai. Defendant Dhondu, after his marriage, started living separately and stopped helping Bhanu in affairs relating to estate. Similarly, Mangru after his marriage left for his in-laws' place at Lakhmapur Bori and he also became useless for Bhanu. Same was the case with defendant Mohan. Daughter Potabai was given in marriage at Chamorshi and later she died. It was only plaintiffs Dharma and Ganpat who remained with Bhanu to serve the parents in their old age and look after the estate. Out of love and affection which Bhanu had for plaintiffs, he decided to gift suit land to them and accordingly executed registered Gift Deed dated 3-4-1978. Plaintiffs accepted the gift and started cultivating suit land. Their names were also mutated in revenue records. It is further the case of plaintiffs that after the death of their father Bhanu on 12-12-1978, defendants started giving them trouble having got annoyed due to the fact that suit fields were given to plaintiffs under registered gift deed. Plaintiff no.1 was also required to lodge police report against defendants no.1, 2, 5 and 6 on account of assault on him and the said defendants were arrested and subsequently prosecuted for an offence punishable under section 324 read with Section 34 of the Indian Penal Code. Defendants still continued to harass the plaintiffs. Plaintiffs apprehended that the defendants were likely to take possession of suit land per force and, therefore, they filed suit for prohibitory mandatory injunction restraining the defendants from entering into and from disturbing the possession and cultivation of plaintiffs over suit fields.

3. Defendants filed their Written Statement and denied suit claim. They alleged that Bhanu had no authority to execute gift deed since the suit property was purchased from the income derived from joint family assets and it was thus ancestral property. Without prejudice to this, defendants alleged that the gift deed was got executed by plaintiffs by exerting pressure on deceased Bhanu. Defendants also alleged that before his death, Bhanu had executed Will cum Partition Deed on 10-11-1978 in presence of witnesses allotting respective shares to plaintiffs, defendant no.1 as also defendants no.2, 2-A and 2-B (legal representatives of original defendant no.2 Mohan who died during the pendency of suit). It was thus alleged that had Bhanu really executed gift deed on 3-4-1978 in favour of plaintiffs out of his free volition, subsequent document of Will cum Partition Deed would have found mention of it. It was further alleged that plaintiff Dharma retained document dated 10-11-1978 with him and later on he had done away with it. They prayed for dismissal of suit with compensatory costs.

4. Plaintiff examined in all four witnesses whereas on behalf of defendants, defendant no.1 Dhondu alone was examined. After hearing the parties, the Trial Court held that plaintiffs failed to prove that suit property was self acquired property of deceased Bhanu and consequently he had no right to gift it to the plaintiffs. In view of these findings, learned Trial Court held that issue as to whether plaintiffs were in cultivating possession of suit land and as to whether there was partition of suit land by Bhanu on 10-11-1978 did not survive. Learned Trial Court also held that plaintiffs failed to prove that their father had gifted suit property to them vide registered gift deed dated 3-4-1978. Learned Trial Court consequently dismissed the suit vide judgment and order dated 29-3-1985.

5. Plaintiffs carried appeal against the judgment and decree passed by the Trial Court before the Additional District Judge, Gadchiroli which was registered as Regular Civil Appeal No.30 of 1989. After hearing the parties, the lower Appellate Court held that suit property was self-acquired property of deceased Bhaurao who had every right to gift it to the plaintiffs and that gift deed is duly proved on record. The lower Appellant Court also held that in pursuance to the gift deed, plaintiffs took over possession of suit fields. The lower Appellate Court accordingly allowed appeal by setting aside judgment and decree passed by the Trial Court. This is how original defendant no.1 and legal representatives of deceased defendant no.2 Mohan have come up with this second appeal.

6. This second appeal was admitted on 6-1-1994 treating grounds no.2, 3, 6, 8 and 12 in the memo of appeal as substantial questions of law which read thus -

"2. Whether the learned lower Appellate Court has erred in holding that the suit property was self-acquired property of the deceased Bhanu ?

3. Whether the learned lower Appellate Court has committed an error apparent on the face of record in ignoring the operation of Doctrine of Blending while recording a finding that the suit property exclusively belonged to Bhanu ?

6. Whether the learned lower Appellant Court has committed an error in ignoring the admission of plaintiff in his statement that deceased Bhanu never treated the property as self-acquired property ?

8. Whether the learned lower Appellate Court has erred in placing reliance on documents at A & B although these documents have not been properly proved?"

7. I have heard Mr. C. S. Kaptan, learned counsel for appellants and Mrs. Vijaya Thakare, learned counsel for respondents. Learned counsel for appellants contends that plaintiff Dharma in his cross-examination has clearly admitted that his father had ancestral land at village Kunghada which was sold for Rs.600/- and as long as defendants 1 and 2 lived with father Bhanu, they helped him in agriculture and further that he was not even born when the defendants were married. Plaintiff Dharma, as pointed out from the deposition by learned counsel for appellants, has further stated that he did not know for how much consideration his father received land in gift from Jamindar. Learned counsel for appellant supplied emphasis on the aforesaid part of evidence in order to contend that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family and the one who asserts has to prove that the property is a joint family property. According to learned counsel, if however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. Learned counsel for appellants pressed into service two rulings of the Apex Court in Srinivas Krishnarao Kango Vs. Narayan Devji Kango and ors. reported in AIR 1954 SC 379 and Makhan Singh Vs. Kulwant Singh reported in [2007 ALL SCR 1224] : (2007)10 SCC 602. It is no doubt true that where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

8. At the first place, appellants could have examined brother of Bhanu who was said to be alive during the course of evidence of plaintiff Dharma or any other resident of village Kunghada to substantiate their claim that joint family had property at village Kunghada which formed nucleus from which the property in question may have been acquired by Bhanu. However, this has not been done. Further, the appellants/defendants could very well produce revenue or any other relevant document including copy of sale deed on the basis of which it could be held that joint Hindu family possessed some property which formed the nucleus so that the property gifted to respondents could be lebelled as ancestral property. This has again not been done.

9. Be that as it may, there are two documents placed on record titled as "SHETPATTA HAMESHACHA" (Permanent Lease of Land) dated 17-12-1942 (Article A) and 4-4-1946 (Article B) whereby one Bhagwantraobapu son of Krishnaraobapu Jamindar Saheb had given lands in question to Bhanu Dharma on permanent lease. Land under permanent lease dated 17-12-1942 was given for no consideration while land under permanent lease dated 4-4-1946 was given for a consideration of Rs.2/- only. Learned lower Appellate Court has rightly attached presumptive value to the above documents being more than 30 years old. Looking to fact that under one document of permanent lease there is no consideration at all and in the other the consideration is as good as nil, contention of learned counsel for appellants that the property was purchased by Bhanu with the aid of joint family property, even if it existed, has to be turned down. From the material placed on record and the finding of fact recorded by the 1st appellate court which is a final court on fact, I hold that the property in question was self-acquired property of deceased Bhanu.

10. Document of Gift Deed dated 3-4-1978 is a registered document. Plaintiffs by examining plaintiff Dharma and by examining attesting witness as well as its scribe have duly proved execution and registration of the Gift Deed (exhibit 95). In the Gift Deed there is recital made by Bhanu that property in question is his self-acquired property. In pursuance to the Gift Deed, revenue records were also mutated in the name of plaintiffs and there is documentary evidence on record also to show that they started cultivating the lands in question. It is already held that the property under gift deed was self-acquired property of deceased Bhanu. Needless to say, therefore, that he had every right to transfer the property by gift which he so did in favour of plaintiffs.

11. As regards the alleged Will (exhibit 134) executed by deceased Bhanu, it is not proved on record and learned lower Appellate Court has rightly observed that the Trial court had given undue weightage to it and without there being any explanation as to why secondary evidence was adduced. The alleged Will (exhibit 134) is not a registered document nor any attesting witness is examined in support of it. At any rate, it cannot be read in evidence in the light of Gift Deed dated 3-12-1978 having been proved and authority of donor to execute it has been established.

12. The questions of law formulated in this appeal are answered accordingly.

13. In the result, second appeal fails and is dismissed accordingly with no order as to costs.

Second appeal dismissed.