Surendra
Kumar Vs. Phoolchand & Anr [1996] INSC 184 (2 February 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K. G.B.Pattanaik. J.
CITATION:
1996 AIR 1148 1996 SCC (2) 491 JT 1996 (2) 127 1996 SCALE (1)644
ACT:
HEAD NOTE:
This
appeal is directed against the Judgment of the Madhya Pradesh High Court in a
proceeding under Section 30 of the Land Acquisition Act (hereinafter referred
to as 'the Act'). A property measuring 25.12 acres appertaining to survey nos.
70 and 71 in village Narwal in the District lndore had been purchased from one Mithulal
under a registered Sale Deed in the year 1961 in the name of appellant Surendra
Kumar by grand father Chhogalal as guardian. The said property was acquired for
the industrial area Indore and the Land Acquisition Collector passed an award
on 5.3.1966 under Section 11 of the Act and compensation of Rs.99,373/- was
granted to the appellant.
Subsequent
to the passing of the award the respondents appeared before the Land
Acquisition Collector and claimed that the property in question is joint family
property and they are entitled to share in it. Dispute having arisen to the
apportionment of the compensation, the Land Acquisition Collector referred the
dispute for the decision to the Court under Section 30 of the Act. Before the
Ld. Additional District Judge it was contended on behalf of the appellant that
the land in question has been purchased in his name from out of his funds
though his grand father Chhogalal acted as his guardian and therefore the same
cannot be treated to be joint family property.It was also contended that Ramchandra
one of the claimants had filed a suit for partition of the joint family
property which was registered as Civil Suit No. 51/53 and in that suit the
disputed property had not been included and present claim therefore is barred
by the provisions of Order II Rule 2 C.P.C. The alternative contention also
have been raised on behalf of the appellant to the fact that Phoolchand had
relinquished his interest in the joint family property by executing a release
deed in favour of Chhogalal and consequently he also relinquished his share in
the compensation amount. The respondents on the other hand contended that the
property has been purchased by Chhogalal in the name of the appellant from out
of the funds of the joint family, and as such they are entitled to 1/3 share in
the compensation amount. lt was also pleaded that the so called release deed is
null and void and non-operative and is not binding. The Ld. Additional District
Judge on thorough consideration of the matter before him came to the conclusion
that Chhogalal grand father of appellant - Surendra Kumar was managing the
affairs of the business of the Joint Hindu Family and the Joint Family had
sufficient funds to purchase the land in question. He also found that the
earlier partition suit having been filed in the year 1953 and the disputed
property having been purchased only in the year 1961, the same could not have
been included in the suit for partition and such non inclusion is not fatal to
the case of the respondents and Order II Rule 2 C.P.C. has no applications. On
the question as to whether the property is a joint family property or not, it
was found that consideration money for purchasing the property had been paid by
Chhogalal from out of the Joint Hindu Family funds and as such it was the joint
family property. The plea of the appellant that the Consideration money was in
fact paid by appellant's maternal grand father was rejected as the appellant
failed to adduce sufficient evidence on that score. With these findings it was
directed that the appellant as well as the respondents would be entitle for 1/3
share each in the compensation amount. The aforesaid judgment of the Addl.
District Judge in Miscellaneous judicial Case No. 9 of 1973 was assailed in
appeal which was registered as First appeal No. 59/1977. The High Court
re-appreciated the evidence on record and affirmed the findings of the Ld.
Addl. District Judge.
Bearing
in mind the correct legal position with regard to the presumption of joint
interest to the property in question the High Court scrutinized the evidence
and came to the conclusion that land in question was the joint family property.
The court also came to conclusion that the Sale Deed in favour of the appellant
having been executed in the year 1961, non inclusion of the property in the
earlier partition suit of 1953 cannot be held to be fatal to the present
proceedings. The Court also further held that the appellant having raised the
plea that the consideration money for the land was paid by the maternal grand
father and having failed to establish the same and no material having been
produced to establish that the property was purchased out of the funds of the
appellant, the conclusion is irresistible that it is the joint family property
and has been purchased by Chhogalal the manager of the joint family property in
the name of grand son the present appellant and consequently the property is
the joint family property. With these conclusions the appeal having been dismissed,
the present appeal has been preferred.
The
learned counsel appearing for the appellant argued with force that though the
sale deed was executed in the year 1961 but the property was in possession of Chhogalal
since 1951 arld even though the respondents knew about the same yet the
property was not included the earlier partition suit filed in the year 1953 and
therefore the provisions of order II Rule 2 C.P.C. . must be attracted.
Alternatively he argued that at any rate by 1966 the respondent having come to
know about the existence of the property and at that time the appeal against
the judgment in Civil Suit No. 51/53 have been pending and yet the property not
having been sought to- be brought over in the appeal, it must be assumed that
the present claim is mere after thought. Lastly, the learned counsel contested
the finding that the property is the joint family property and rejection of the
case of the appellant that the consideration money was paid by maternal grand
father is wholly unsustainable in law and is merely arbitrary and, therefore,
this court would be justified in reversing the finding with regard to the jointness
of the property.
Learned
counsel for the respondent on the other hand condended that two courts below
having examined the relevant Materials in its proper perspective and having
recorded the finding that the property is the joint family property, it would
not be appropriate for this court to interfere with the same particularly when
no question to law arises in this regard. The learned counsel also contended
that the earlier suit filed by one of the respondents being in the year 1953,
and at that point of time the property not having been purchased, the question
of inclusion of the same in the earlier suit did not arise and consequently the
courts below rightly held that the non inclusion cannot be held to be fatal to
the present suit.
In
vies of rival contentions, two questions really arise for our consideration:
1)
Whether non inclusion of the disputed property in the earlier partition suit
will in any way affect the present proceedings by application of Order II Rule
2 C.P.C.?.
2)
Whether the findings of the two courts below on the question that the property
is a joint family property can at all be interfered by this Court? So far as
the first question is concerned on the admitted position that the sale deed in
the name of the appellant was executed only in the year 1961 and the suit for
partition of the Joint Family property by Ramchandra had been filed in the year
1953, the said property could not have been included in the partition suit and
therefore non inclusion of the property is not fatal to the present
proceedings. In our considered opinion the provisions of Order II Rule 2 C.p.C.
cannot be applied to the facts and circumstances of the present case. In this
connection it will be appropriate to consider the contention raised by the
learned counsel for the appellant that the respondents came to know about the
property when they filed application before the Land Acquisition Authority and
still they did not approach the appellate forum in the Civil Court for
inclusion of the property and on that score they would not be allowed to
agitate in the present proceeding. We are afraid this submission does not have
any substance.That the property having been acquired and an award has been
passed, any claim in respect of the said compensation amount can only be made
by raising a dispute before the land acquisition authority and that has been
done in the present case. We also do not find any material in support of the
contention raised on behalf of the learned counsel for the appellant that the
respondents must be presumed to have knowledge about the purchase of the
property since Chhogalal was in possession of the same since l951. We have carefully
scrutinized the material on record and we do not find iota of evidence in
support of the aforesaid contention. In the aforesaid premises the irresistible
conclusion is that non inclusion of the disputed property in the earlier
partition suit does not in any way affect the present proceeding and therefore
in a reference under Section 30 of the Land Acquisition Act the Court was fully
justified in deciding the question as to whether the property is joint family
property or is the self acquired property of the appellant.
The provisions
of Order II Rule 2 C.P.C. has no application.
Coming
to the second question it is an admitted fact that Chhogalal was the eldest
member of the family and was the manager of the Joint family consisting of Chhogalal,
Ramchandra and Phoolchand. The agreement to sale is stated to have been made in
the year 1951 and consideration money had been paid in 1951 and 1952 and
finally sale deed was executed in the year l961. At that point of time the
present appellant was a minor and the property was therefore purchased in the
name of the minor with Chhogalal as the guardian. In course of the proceedings
appellant has taken the specific plea that the consideration money had been
paid by his maternal grand father and that plea has been rejected by the courts
below on consideration of material with the finding that the appellant has
failed to establish the same.
Thus
there is no material to establish that consideration money for the property was
paid by the appellant from out of his separate funds. It is no doubt true that
there is no presumption that a family because it is joint possessed joint
property and therefore the person alleging the property to be joint has to
establish that the family was possessed of some property with the income of
which the property could have been at required. But such a presumption is a
presumption of fact which can be rebutted. But where it is established or
admitted that the family which possessed joint property which from its nature
and relative value may have formed sufficient nucleus from which the property
in question may have been acquired, the presumption arises that it was the
joint property and the burden shifts to the party alleging self acquisition to
establish affirmatively that the property was acquired without the aid of the
joint family. Both the courts below have scrutinized the evidence bearing in
mind the aforesaid legal position and have rightly come to the conclusion that
the property in question is the joint family property. We see no justification
for our interference with the said concurrent findings of the two courts below.
The appreciation of evidence has been rightly made bearing in mind the correct
legal position. The appellant thus has utterly failed to establish that the
consideration money for the property was paid out of his personal funds.In the
aforesaid circumstances agreeing with the two courts below we hold that the
property was the joint family property and therefore the respondents have 1/3
share each in the compensation amount. In the aforesaid premises this appeal is
devoid of merits and the same is accordingly dismissed but in the circumstances
without any order as to costs.
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