- (1.) THIS is a plaintiff's second appeal in a suit for partition of a plot at Orai. The parties are all of them brothers being the sons of Net Singh. Ratan Singh, the first defendant respondent is the eldest of them. Sultan Singh, the plaintiff-appellant is the second; Tej Singh, the second defendant, is the third, and Paras Ram, the third defendant, is the fourth. I may; incidentally mention that Tej Singh, the third respondent, in the second appeal in this Court, has wrongly been described as a plaintiff-respondent. He is, in fact, the defendant-respondent.
(2.) THE pedigree given in the plaint shows that the father of the parties, namely, Net Singh, had two other brothers, Balram and Dal Chand. Balram had five sons of whom Panna Lal was one. Dal Chand had a son, Ram Charan. THE plot, of which the land in suit forms a one-third part, was purchased jointly by Panna Lal, Ram Charan and Ratan Singh under a sale deed, dated the 30th Jan, 1956, which is Ext. A 2 on the record. According to the plaintiff, there was a partition of the plot, into three equal portions between Panna Lal, Ram Charan and Ratan Singh in the beginning of the year 1972, at which the western portion measuring 90' x 35' was allotted to Ram Charan, and, out of the remaining two-thirds portion, the southern portion measuring 70' x 45' was allotted to Panna Lal while the northern portion measuring 70' x 45' was allotted to the plaintiff and the defendants, meaning thereby that it was allotted to Ratan Singh as a representative of Net Singh's branch of the family. It is then alleged that when the land was purchased in 1956, the parties were members of a joint family, and the land was purchased by Ratan Singh from joint family funds as its Karta. THE three defendants filed a joint written statement. THEy denied the plaintiff's case and asserted that he had no share in the land in suit, and was not in possession of any part or portion thereof; that even if he had any right, it was lost by adverse possession for more than twelve years, and that the land was purchased by the first defendant, Ratan Singh, from his own self acquired funds and he alone was the owner. It was then alleged that the plaintiff had separated from the defendants more than twenty years ago and only the cultivation remained joint. THE allegation that the defendant No. 1 was the Karta of the family and that the land was acquired by him from joint family funds as the Karta, was specifically denied as incorrect. This is followed by the allegation that in the year 1970, there was a family settlement between the parties, and a memorandum of the shares allotted to the parties was prepared on the 5th Jan, 1970, which showed the agricultural land and other properties moveable and immoveable allotted to the parties respectively and it was settled that so far as the land in suit was concerned, the defendant No. 1 alone shall remain its owner, and that the parties were in possession of their respective share accordingly. The first issue raised by the Trial Court was whether the plaintiff is entitled to one fourth share, and the second whether the defendants are sole owners of the disputed property. It was not the defendants' case that the three of them were the owners of the property in suit to the exclusion of the plaintiff. Their case was that the first defendant alone was the sole owner of the property in suit, and apart from the fact of the purchase of the property in his name along with Ram Charan and Panna Lal, they relied on the memorandum of the property allotted in the Kura of the first defendant, Ratan Singh, which is dated the 5th Jan, 1970, and is signed by the four parties to the suit as also by four Panchas, with whose mediation, the division was arrived at between the parties. This document was filed on the 9th Dec, 1974 and has been marked Ext. A. 1, and is supposed to have been exhibited on the 17th Nov, 1975, but does not bear the signatures of the learned Munsif at the foot of the endorsement marking it an Exhibit. On the said issues Nos. 1 and 2, which the learned Munsif took up for consideration together, he held that in view of paragraph 11 of the written statement of the defendants, wherein the movable and immovable properties of the joint family were said to have been partitioned in the year 1970, the family must have continued to be joint till then and the land must be presumed to have been purchased from joint family funds in the name of the Karta, and was, therefore, joint family property, in which the plaintiff had a one-fourth share. The issue No. 3 was whether the suit is barred by estoppel and acquiescene. The learned Munsif considered the question of admissibility of the memorandum, dated the 5th Jan, 1970, which has been referred to by him as Paper No. 12 Ka-1 and not as Ext. A. 1, and held that since it purported to create a right in immovable property of the value of more than Rs. 100/- and was unregistered, it was inadmissible in evidence, and consequently, in the absence of any evidence, it cannot be held that the suit is barred by estoppel and acquiescence. Issue No. 4 raised the question of limitation. According to the trial Court, the family having been joint till 1970, and the suit having been filed in 1974 within less than twelve years, it was not barred by "arts. 64 and 65 of Indian Limitation Act. " In the result, the learned Munsif held on issue No. 5 that the Plaintiff is entitled to the relief claimed and decreed the suit "for partition and possession" with costs and directed that a preliminary decree be prepared accordingly. On appeal by the first defendant, Ratan Singh, the said judgment and decree of the Trial Court were set aside, but the learned Civil Judge, who decided the appeal, also ruled the Paper No. 12 Ka-1 out as inadmissible in evidence for want of registration. The appeal was allowed by him on the finding that the land was not joint family property. According to the learned Civil Judge, "the mere existence of a joint family cannot raise the presumption that the acquisitions made by the family were joint family properties" and that "to prove that a particular acquisition is a joint family property one must further prove that the joint family possessed a nucleus which was sufficient to provide funds for the new acquisition". Further, he held that the burden was on the person who alleged that the land in suit is joint family property to prove that it is so. The penultimate finding and the reasons therefor as given by the learned Civil Judge, are in these words : "the sale deed Ext. A. 2 stands in the name of three persons. If it was a joint family venture it must have stood in the name of one person namely the then Karta of the family. Besides that there is not an iota of evidence that the joint family possessed any nucleus whatsoever. Under this circumstance the learned Trial Court misread the ruling cited before him although the citation of the ruling has not been given in the judgment of the learned Trial Court. I, therefore, find that the plot in suit was not a joint family property. "
(3.) LEARNED Counsel for the appellant was rather critical of the way in which the case has been dealt with by the lower Appellate Court. He contended that the land in suit was joint family property and the Paper No. 12 Ka-1, on which the defendants relied on, having been ruled out of evidence as inadmissible, the plaintiff's suit for partition of the land deserved to be decreed. The learned Counsel for the respondents, on the other hand, contended that both the Courts below were in error in ruling the Paper No. 12 Ka-1 out of evidence as inadmissible. He contended that the document was not an instrument of partition. It was just memorandum of the property, which had been allotted to the first defendant at a partition which had been orally arrived at and agreed to by the parties through the mediation of the four panches. It was admissible as an admission of the fact that the land in suit had been allotted to the first defendant at a partition arrived at between the parties by way of a family settlement to resolve their disputes.;