Sarjoo Prosad, C. J. -
(1.)THE plaintiffs have preferred this appeal, which arises out of a suit for declaration of title to certain lands and houses described in para-graphs 2 and 3 of the plaint. THEre was also a prayer for recovery of possession and damages for use and occupation. THE lands consist of five different plots comprised in Khasra Nos, 742 to 745 of the Municipality, and are situated at Kesarganj in the town of Ajmer with a house known as Kothi and two small houses appurtenant thereto standing on the above lands.
(2.)THE case of the plaintiffs is that on the 4th of November, 1897, the permanent lease hold rights in the lands in question were acquired by their father the late Munshi Lakshmi Narain, who was a lawyer and had set up practice at Ajmer. THE said Munshi Lakshmi Narain very soon built up a lucrative practice, and after the acquisitions of the lands got the disputed house constructed thereon. THE plaintiffs and the defendants 1 to 3 are all descended from a common stock, and to appreciate the case of the parties, it is necessary to bear in mind a small pedigree : Ramnarain Lakshmi Narain Swaroop Narain (Deft. 1) Shri Narain Raj Narain (Defdt. 2) Ganesh Narain (Defdt. 3) Govind Narain (Pltf. 1) Harish Narain (Pltf. 2) Jagdish Narain (Pltf. 3) Shakti Narain (Pltf. 4) THE other defendants 4 to 5 are tenants residing in the suit property. THE case of the plaintiffs is that Munshi Lakshmi Narain, who practised for a time at Ajmer and then shifted to Beawar, purchased the leasehold rights in those lands at an auction sale, for which he paid the part premium of Rs. 46/5/- on the date of auction. Later when the settlement was approved by the Chief Commissioner of Ajmer, he paid the balance of the entire premium on the 7th of December, 1899 (vide Exs. P. 83 and P. 84), and the lease deeds were executed in his favour on the 31st of May, 1900, (vide Exs. P. 77 P. 81 ). He also obtained the sanction of the Municipality for construction of houses therein, and started constructions some time in May, 1901; and the constructions were completed by September, 1903 (vide Exs. P. 1 - p. 10 ). THE name of Munshi Lakshmi Narain was recorded in the Municipal records in respect of the suit lands, and he continued to pay the ground-rent for the same and exercised full rights of ownership thereon. Since Munshi Lakshmi Narain had been practising at Beawar, he allowed Munshi Shri Narain the father of the defendants 2 and 3, who was staying at Ajmer, to realise the house rent of the properties, and to manage the same under his instructions and on his behalf is his agent. On the death of Munshi Lakshmi Narain in 1927, the title of the lands and houses which were the self-acquisitions of their father devolved on the plaintiffs as his heirs, the defendants] having no interest therein. At the time of his death, the plaintiffs 2 to 4 were minors, while the first plaintiff Govind Narain had just attained majority, and was receiving education at Agra. Consequently Munshi Shri Narain, who acted as the plaintiffs' de facto guardian looked after their affairs, and managed their immovable properties, and dealt with the case etc. He, further, for and on behalf of the plaintiffs, used to realise the rent from the tenants occupying the houses in question, and send the same to the plaintiff from time to time. THE youngest brother Shakti Narain, plaintiff No. 4, attained majority on the 30th of September, 1943. Munshi Shri Narain suddenly died of heart failure on 27th November, 1942, and then the defendants started claiming certain rights of ownership in themselves in respect of the properties in question. THE plaintiffs then learnt on enquiry that in July, 1939, the late Munshi Shri Narain taking advantage of his position had got his name and that of the defendant 1 inserted in the Demand and Collection Register of the Municipality on furnishing wrong information to the Municipal authorities in response to the notices which were received by him from the Municipality on behalf of the heirs of the late Munshi Lakshmi Narain. In consequence of that mutation on the death of Munshi Shri Narain, his sons, the defendants 2 and 3, also got their names mutated in the Demand and Collection Register of the Municipality, and when the plaintiffs protested against the mutation of the names of those defendants, the parties were referred to civil Court. THE plaintiffs have, therefore, instituted the suit, impleading the tenants as well, and claiming to recover rent and damages from the defendants.
Separate sets of written statements were filed by the defendants Swaroop Narain and Raj Narain and Ganesh Narain. The defendant No. 5 also filed a written statement contesting the plaintiff's claim. The main contesting defendants, who are the defendants 1 to 3, have raised various pleas. In the first instance they claim that the acquisition of the lands as also the construction of the houses was made by Shri Ram Narain, the father of Munshi Lakshmi Narain, who was also flourishing lawyer at Beawar, and had similarly acquired a number of other properties. The houses and the lands were accordingly not the separate acquisition of Munshi Lakshmi Narain, the father of the plaintiff's as claimed by them, but were part of the ancestral joint family property in which the plaintiffs and the defendants were all interested ; and the plaintiffs could not have any exclusive right therein. The alternative pleas set up by the defendants were that in any case Shri Ram Narain, when he died, left sufficient nucleus of joint family property to enable the acquisition of the disputed lands and construction of the houses in suit, and that, therefore, all these properties should be held to be joint family properties. It was also pleaded that Munshi Lakshmi Narain had blended his own income with the income of the joint family treating these properties as properties of the joint family, and as part of the common stock which were managed even in his life time by Munshi-Shri Narain, the father of the defendants 2 and 3, who utilised the income of the property for the maintenance and benefit of the entire family. Finally, also they set up a claim of adverse possession over the properties in dispute as having been in possession thereof as owners for over 12 years.
The plaintiffs in their replication, controverted the above pleas of the defendants. They asserted that the joint family nucleus was too meagre to enable the acquisition of the properties or the construction of the houses. Munshi Shri Narain was in service at Ajmer as clerk, and Swaroop Narain was in Shahpura Estate earning about Rs. 15/- or Rs. 30/- p. m. respectively. Their income was hardly sufficient even for the maintenance of their individual families, much less they could make any contribution to the acquisition of any property. In fact even the members of their family and the defendants were supported by Munshi Lakshmi Narain. Munshi Lakshmi Narain graduated in law in 1896 from the Allahabad University, and shortly therefore he set up practice at Ajmer, though some time later after the death of his father Shri Ram Narain on 27th November, 1897, Munshi Lakshmi Narain shifted to Beawar where he soon got into very prosperous and flourishing practice.
The learned Sub-Judge, Ajmer, who tried the suit, held that at the time of acquisition of the disputed lands, Munshi Lakshmi Narain had just commenced his practice, and was living with his father as a member of the joint family ; and that there was sufficient joint family nucleus out of which the lands could be acquired in the name of Munshi Lakshmi Narain and, therefore, the lands constituted joint family property. As to the construction of the houses, he found that at the time the constructions were put up Shri Narain was not an earning member, and the income of Swaroop Narain was also low. The only member of the family, who was then having substantial earnings was Munshi Lakshmi Narain. He was also unable to find that the money for the constructions came from any cash amount left by the father or from the income of the joint family properties, and that the manner in which the constructions progressed during the course of three years shows that the constructions were put up from the personal earnings of Munshi Lakshmi Narain. He was, however, of opinion that Munshi Lakshmi Narain treated these properties as joint family properties, and allowed the income thereof to be utilised for the purposes of the joint family. He accordingly held that there was an intention to blend these properties with the joint family properties on the part of Munshi Lakshmi Narain, and that, therefore, the defendants were also entitled to the properties in question. He accordingly dismissed the suit with costs. Shri Bhargava, the learned counsel appearing for the plaintiffs-appellants has challenged these findings of the learned Subordinate Judge in regard to the acquisition of the lands out of joint family nucleus or of any intention to blend his own income with that of the joint family on the part of Munshi Lakshmi Narain deceased. The main question, therefore, which we have to determine in this case is whether the disputed property is the self-acquired property of Shri Lakshmi Narain or part of the joint family stock in which the defendants 1 to 3 are also interested along with the plaintiffs.
The law is well-established that although there is presumption in law that a Hindu joint family continues to be joint, yet there is no presumption that because it is joint, it possesses joint property or any property for that matter. Where; therefore, a person claims that any particular item of the property is joint family property, the burden of proving that it is so, rests on the party asserting it, though circumstances may readily cause the onus to he discharged. Where, therefore, it is established or admitted that the family possessed some joint property, which from its nature and relative value may have formed the nucleus, from the income whereof the property in question could be acquired, a presumption may arise that the property was joint family property. The burden would then shift on the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family funds. No such presumption would, however, arise if the nucleus was such that with its help the property claimed to be joint could not have been acquired All this of course is a question of fact to be determined on the circumstances of each case; but an important element for consideration is the income which the joint family nucleus yielded. The finding in this case of the learned Judge below is that the acquisition of the lands was made during the life time of Babu Lakshmi Narain's father Shri Ram Narain, and that this acquisition, as he presupposes, must have been made out of his income, because at that time there could be no intention on the part; of Munshi Lakshmi Narain to acquire any properties in Ajmer. In our opinion, the learned Subordinate Judge has ignored in this context some of the important probabilities of the case. Babu Lakshmi Narain passed his LL. B. Examination in 1896, and obtained his diploma in March, 1897. It appears that some, time in June of that year he joined the bar, and set up practice at Ajmer. Babu Ram Narain, the father, did not live in Ajmer, but was practising at Beawar. There was, therefore, nothing unusual in Shri Lakshmi Narain seeking to acquire some lands in Ajmer in his own right provided it could be shown that he had the means to make the acquisition. The evidence shows that there was also the joint family property adjacent to these lands on the east, which was acquired by Babu Ram Narain. The constructions on that land were started some time about 1894 and completed in 1896 (vide Exs. D-9 - D 11), and Shri Lakshmi Narain was already staying in that family house. Babu Lakshmi Narain, therefore, could very reasonably think of having these plots which were adjacent to the joint family house for his own purposes. At that stage there is nothing to show that he had any idea of shifting his practice to Beawar which was necessitated on account of the death of his father Shri Ram Narain in December, 1897. The leasehold interest in these lands was sold in auction on the 4th of November, 1897, and Babu Lakshmi Narain appears to have offered the highest bid. The only premium which was deposited on that date is a sum of Rs. 46/5/-; the balance of the premium of Rs. 424/12/3 was paid on receipt of notice from the Municipality on the 7th of December, 1899, some two years later, when the sale was sanctioned by the Chief Commissioner of Ajmer (vide Exs. P. 82, 83, and 84 ), and then the lease deeds were executed in favour of Babu Lakshmi Narain in respect of these lands for building purposes with perpetual rights of occupancy on the 31st of May, 1900 ( vide Exs. P. 77 to 81 ). The question, which then arises, in whether Babu Lakshmi Narain could not afford to pay even that small premium of Rs. 46/5/- in November, 1897, out of his own earnings. The contention of the defendants is that he was then just a beginner at the bar seeking to establish himself in practice, and he could, therefore, neither have the intention to acquire the lands in Ajmer nor the means to pay the premium for the settlement of the lease-hold property. We find, however, that even in 1897 Babu Lakshmi Narain had started earning enough for a beginner; and although he may not have been very well settled in his practice at the time he could verily afford to pay the small premium which was paid on that date. There are various Vakalatnamas on record, which prove that Babu Lakshmi Narain had been engaged in 1897 in a number of cases on behalf of various clients : vide Ex. P. 39 dated 30th June, 1897, in connection with a civil suit pending in Ajmer; Ex. P. 40 dated 6th July, 189/, in connection with a case pending before the Sub-Judge, First Class, Beawar; and Ex. P. 41 dated 11th August, 1897, in connection with an appeal against the decree of the Assistant Commissioner Beawar. All these cases appear to be cases of fairly high valuation. Ex. 75 is a decree in appeal in which the claim was valued at Rs. 9,529/11/9, wherein we find that Munshi Lakshmi Narain appeared as a lawyer for the plaintiff-respondent. These documents leave no doubt in our mind that Babu Lakshmi Narain bad already started earning, and must have had the means to pay the small initial premium in order to enable him to acquire the lease-hold interest in the disputed land in November, 1897, in his own rights as such. It may be that these engagements were also due to the standing and influence of his father as a lawyer of repute at Beawar, but that would not make any difference as to the character of his earning. . . . . . . . . . . . . . . .
We have proceeded to discuss the evidence irrespective of any consideration of the onus of proof. In view of the fact that all the documents of title stand in the name of the plaintiffs' father, the burden of proving that the property was joint family property and that Shri Lakshmi Narain had no independent means to make the acquisition or that the property was acquired out of joint family funds lay upon the contesting defendants ; but even if the onus lay upon the plaintiffs that burden has been fully discharged. The learned subordinate Judge appears to have acted on the assumption that since the acquisition was made at the commencement of his career and at a time when Shri Lakshmi Narain was living in a state of jointness with his father it must be presumed that the acquisition must have been made out of joint family funds or out of the income of the father. Any such assumption is clearly erroneous. If any property is purchased by the son in his own name during the father's life time, with whom the son may be living in a stale of jointness and the son has independent means of income and sufficient resources (for the purpose, the presumption should be that the son acquired it for himself and that it was not joint family property. We will, however, soon discuss the relative value of the joint family nucleus and the relevant evidence of the defendants on the point of acquisition.
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(3.). . . . . . . . . . . . . . . . . . . . . We must, therefore, hold that both the lands as well as the houses built thereon were the self-acquisitions and separate properties of the plaintiffs' father, and that as such, subject to our decision on the point of blending, the defendants will have no interest therein.
This leads us to a consideration of the alternate plea which has been taken on behalf of the defendants, namely, that these properties even though self-acquired must be deemed to have been blended with the joint family property, which admittedly continues to be joint. It should be observed here that all the ancestral properties acquired by Shri Ram Narain are still intact, except for the small house in Mohalla Teliyan, which has been sold and to which reference has been made earlier. There is no allegation that by selling the corpus of the joint family property Babu Lakshmi Narain raised any money either to pay for the premium on the lease hold or for the construction of the houses in question. The plea of blending is evidently in conflict with the plea that the disputed properties were joint family properties, and that the acquisitions were made either by, Shri Ram Narain himself or out of monies left by Shri Ram Narain. In any case, the parties have led evidence on the point, and the learned Subordinate Judge has accepted the defendant's case that Babu Lakshmi Narain himself treated these properties and joint family properties as part of the common stock. A large number of decisions have been cited by either party in support of their respective arguments on the question of blending. It will not be necessary for us to discuss all these cases because the principles appear to be well established and the only question is of the application of these principles to given facts. It is no doubt true that an individual member of a coparcenary or a joint family who has acquired property out of his own earnings may impress it with the character of a joint family property, and throw it in the joint family stock so as to make it available for the benefit of the members of the joint family or the coparcenary ; but in order to enable the court to hold that the member concerned has actually done so, there must be clear and unequivocal expression of his intention by overt act or conduct to abandon his right to the property. The concept of blending carries with it a conscious and deliberate surrender of his interest in the self-acquired property in favour of the joint family, and that intention can be gathered only from unequivocal circumstances or ostensible acts on his part to treat the self-acquired property as part and parcel of the joint family hotchpot. The fact that he allows some members of the family to manage the property or to apply the usufruct thereof for purposes of the joint family will not necessarily imply the existence of any such unequivocal intention to throw his self-acquisition in the common stock so long as his conduct can be explained on other grounds: for instances, facilities of management; or, are attributable to acts of kindness, affection and generosity to the other members of the family. It is not unusual for a member of the joint family, who, on account of his individual earning, is comparatively in affluent circumstances and can well afford to educate and maintain the other members of the family, when the income of the joint family property itself is not sufficient for the purpose, to incur such expenditure out of natural love and affection for the other members or the family and for the sake of maintaining the social status and prestige of the family itself. This cannot entitle the other members of the family to take advantage of his kindness and generosity and to claim his self-acquisitions as their own. In order to do so, it will have to be shown by clear and cogent evidence that the person, who acquired the property by his own overt act intended to give it away to joint family. Indeed in a case from Patna (vide Sirdar Bahadur Indra Singh vs. Commissioner of Income-tax, Bihar & Orissa (1), it has been held that in order to prove any such conscious surrender of a coparcener's or individual member's interest in his self-acquired property, there must be a registered document to evidence the transfer as required by the Transfer of Properly Act. It may not be necessary for us to go to that length, in order to establish a case of blending where a joint family is concerned; provided there is unequivocal evidence to prove that all the time the member concerned, whose intention it was to treat the property as a part of the joint stock, allowed the other members of the family to have the benefit of the property and the income thereof just in the same manner as that of any other joint family property, and expressly held out to others by his act or conduct that the property was joint family property, and that he waived any individual interest therein. It would be, however, dangerous to come to any such conclusion on isolated facts, which we have said may be very well traced to acts of kindness, affection and generosity with a view to assist the other members of the family. In a decision of this Court in Mst. Govindi vs. Chhagan Lal (2) many of the older cases have been reviewed. The principles bearing on the point have been thus summed up by Mayne in his Hindu Law and Usage, 11th Edn. : "the property which -was originally selfacquired may become joint property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. . . . . . . . . The question whether he has done so or not, is entirely, one of fact to be decided in the light of all the circumstances of the case ; but a clear intention to waive his separate rights must be inferred from acts which may have been done merely from kindness or affection. "
In Mulla's Hindu Law, 1946, Edition, it is also observed that : "property which was originally the separate or self-acquired property of a member of a joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established, and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself, nor from the fact that the income of the separate property was used to support a son. "
The burden of proving that there was any such blending lies entirely on the defendants, and the evidence given on the point may be classified under three different heads : (i) The production of a Return of Income which is said to have been submitted by Babu Lakshmi Narain, and his statement before the Income tax Officer wherein it is said that he prescribed the disputed properties as joint family properties; (ii) The account (Ex. D. 27) written by Babu Shri Narain and covering a period from 1910 to 1933 from which it appears that the income from rent of the disputed houses was mixed up with the income from some other sources of the joint family and spent for the needs of the family as also for the construction of the second storey on the ancestral house in Ajmer; and (iii) The evidence of some witnesses before whom it is said that Babu Lakshmi Narain admitted that the properties were joint family properties. We have to examine all these materials to see whether a case of blending has been actually made out.