- (1.) THIS is a plaintiff's Second appeal in a suit for partition. The parties are brothers. The dispute relates to a house, the site of which was purchased on 21st August. 1941 for of consideration of Rs. 1,000/- in the joint name of both the brothers. The construction of the house began in 1947 and was completed by 1948. The defendant's case was that the house belonged to him exclusively. He had purchased the land from his own separate funds, but the mother of the two brothers. the father being dead, desired that the name of the plaintiff should also be entered in the sale deed and the defendant acquiesced in the wishes of the mother, on the assurance that the plaintiff would pay his share but that was never paid.
(2.) IT is undisputed that there was no partition between the brothers at any time after their father's death and they had continued to remain joint in estate. IT is a different matter that both the brothers were employed and besides the ancestral property they had taken up employment to eke out their livelihood. The family to which they belonged possessed some 34 bighas, 14 biswas of agricultural land. The case comes from district Meerut. IT does, however, appear that the whole area of the land did not belong to the two brothers, and, according to the lower appellate Court, the share of Naubat Ram the father of the two brothers, came to about four bighas of land in that holding. The principal issue on which the parties went to trial was whether the plaintiff had a half share in the house at item No. 1 of the plaint. The property of which partition was sought in the suit consisted of two houses. There was no dispute with regard to the house described at item No. 2 at the foot of the plaint. The dispute was confined to the house at item No. 1 at the foot of the plaint. The Trial Court found that there was no nucleus with the family from which the land beneath the house could have been acquired it being admitted by the plaintiff that he did not contribute any money towards the purchase of the land. It has been noticed above that the land was purchased for Rs. 1,000/- only. The Trial Court found that the plaintiff got employment for the first time in the year 1942 as a Tube-well Operator. His salary was Rupees 18/- per month and was claimed to have risen to Rs. 50/- by about 1947 but according to the trial court the plaintiff was in the grade of Rs. 18-1-50 and, therefore, his salary in the year 1947 would have been about Rs. 24/per month. The Trial Court did not, therefore, believe the plaintiff and held that he had completely failed in proving that he contributed anything towards the construction of the house in suit. It was contended for the plaintiff before the Trial Court that it was for the defendant to prove that he was possessed of sufficient funds, that the land for the house had been acquired and the house had been built by him from out of his own funds exclusively, but according to the Trial Court, that was a wrong approach and the burden lay upon the plaintiff to show that the house in dispute had been acquired out of joint funds or with the help of a joint family nucleus, and as such it was for the plaintiff to show that it was so. This is followed by the Trial Court's finding that the plaintiff failed to prove that he had contributed anything to- wards the construction of the house or there was any such nucleus with the help of which a house worth Rupees 29,000/- could have been constructed. In the result the Trial Court held that the plaintiff had no share in the house shown as item No. 1 and decreed the suit only for the partition of the house shown at item No. 2 at the foot of the plaint. The claim for partition of the house shown at item No 1 at the foot of the plaint was expressly dismissed. The lower Appellate Court affirmed the said judgment and decree of the Trial Court hence this second appeal.
(3.) ACCORDING to the judgment of the lower Appellate Court the three grounds on which the plaintiff claimed a half share in the house at item No. 1 of the plaint also, hereinafter referred to as the house in dispute, were : (1) There is ancestral property in village Udaipur, Tahsil Hapur, giving an annual income of Rs. 500/ -. which was solely realised by the defendant and used by him for the construction of this house. (2) The house was constructed in parts and was let out to various tenants. This rental income, according to the plaintiff, was also realised by the defendant and was used for the construction of the home. (3) The plaintiff had also contributed the amount for the construction of this house from the savings of his earnings. The points raised by the lower Appellate Court for its determination were : "1. Was there any joint family nucleus, if so was it available to the defendant and was it sufficient for the purchase of the land and construction of the house thereon ? 2. Had the plaintiff contributed towards the costs of the land and the construction of the house ?" On the first point the lower Appellate Court recorded the following findings : (i) There was no joint family nucleus, from which the land could be purchased. (ii) The plaintiff did not pay any part of the sale consideration. (iii) The joint family was not in possession of the agricultural land, which was not leaving any surplus alter meeting the needs of the family and therefore, no money was available from the joint family property to the defendant, which could be used for the purchase of the land or for the construction of the house thereon. On the second point the lower Appellate Court recorded the finding that with a meagre salary of Rs. 18/- Per month, it could not have been possible for the defendant (plaintiff ?) to save anything and he could not have contributed anything for the construction of the house or for the purchase of the land. It then proceeded to consider the third point, though not formulated by it in so many words on the argument raised on behalf of the plaintiff-appellant, that the defendant had failed to establish his means and as the house was constructed on the joint land, it must be held that it is joint property and was constructed jointly by the two brothers. ACCORDING to the lower Appellate court the argument was not convincing. In the own words of the lower Appellate Court. "firstly it is admitted by the plaintiff that the defendant had purchased the house in the name of his wife. This house was purchased for Rs. 8000/ -. The plaintiff has not filed suit regarding this house. It follows therefore, that the defendant had purchased this house out of his own savings. This alone shows that the defendant has sufficient means, Secondly the defendant had been in service from 1929. He had paid the entire sale consideration about the purchase of the land. This also shows that the defendant has been saving money from his earnings, and by 1947, when he started constructing the house he must have saved sufficient amount. Thirdly it is true that the land was purchased in the plaintiff's name also, but the evidence discloses : (i) that the plaintiff had not contributed towards the sale consideration. (ii) that the defendant was in services at that time. (iii) that the ancestral property was yielding no income, and under these circumstances, the statement of the defendant that the plaintiffs' name was mentioned as desired by his mother, must be believed. The house was constructed by the defendant, even it was let out to different tenants and the defendant has been realising rent, this fact cannot help the plaintiff and the house will remain the private property of the defendant. " Learned Counsel for the plaintiff-appellant in this Court urged that the burden of proving whether the house in dispute was coparcenary property between the two brothers or was the separate and self acquired property of the defendant had been completely misplaced by the two Courts below and the findings arrived at by them were erroneous and vitiated in law. Learned Counsel pointed out that the Trial Court had even referred to the decision of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango (AIR 1954 SC 379), but had completely misapplied the ratio of that case. The lower Appellate Court did not refer to any decision. Referring to the decision of the privy Council in Appalaswami v. Survanarayanamurti (AIR 1947 PC 189 at 192), the Supreme Court quoted the following statement of the law on the point from that case: "the Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But 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. ";