Bapna, J. - (1.) This is an appeal against the judgment and decree of the High Court of the former covenanting State of Jodhpur, and, was filed before the Ijlas-i-khas and. transferred to this Court by virtue of the provisions of Ordinance No. XL of 1949 read with Ordinance No. XII of 1950.
(2.) The respondent Hazarimal sued the appellant Jetharam for specific performance of a contract of sale of a house situated at Jodhpur and more particularly described in the plaint, on the basis of an agreement of sale Ex. P- 1, dated the 29th January 1941. Rugnath Das and his three sons were impleaded as defendants Nos. 2 to 5 as mortgagees of the property. Laduram and Jaitulal, sons of Jetharam defendant, and their minor sons were impleaded as defendants Nos. 6 to 12 on, their own application. Defendant No. 1 and defendants Nos. 6 to 12 filed separate written statements but have taken identical pleas. They contested the suit on the following grounds; (1) that Jetharam was a person of weak intellect and his signatures had been secured on Ex. P-l under a misrepresentation and he did not fully understand the nature of the transaction at the time; (2) that the completion of the sale had been made dependant upon the consent and willingness of the sons and grandsons of Jetharam & as the same had not been secured, the agreement was not enforceable; (3) that the house in dispute had been built by Dalla father of Jetharam, and was the joint family property of Jetharam, and his sons and grandsons, and Jetharam alone had no authority to enter into an agreement for sale which was thus unenforceable. The mortgagees denied any knowledge of the agreement of sale and expressed that they had no interest except under the mortgage which, they said, had been executed by Jetharam and his sons. The trial Court accepted the defence on all the three points and dismissed the suit. On appeal, the learned Judges of the High Court of the former covenanting State of Jodhpur reversed those findings and held on a discussion of the evidence and circumstances of the case that it had not been established that the house had been built by Dalla and was ancestral property in the hands of Jetharam. it was held that the land had been acquired and built upon by Jetharam himself. The contention that Jetharam had since the acquisition of the property thrown it into the common stock and made it joint family property belonging to his sons and grandsons was negatived. It was also held that even on the assumption that the house was joint family property, the agreement to sell had been made for payment of his antecedent debts and was binding on his sons and grandsons. It was further held that it had not been proved that Jeharam was a person of weak intellect but on the other hand it had been fully proved that he had executed Ex. P-l of his own free will after understanding its implications and no misrepresentation had been made to him, and further that there was no stipulation for obtaining the consent of the sons of Jeharam before the agreement of sale was to become complete. The suit was accordingly decreed for specific performance of the contract of sale against Jetharam, with directions that he should execute a saledeed and have it duly registered and also deliver possession to the plaintiff, and for possession against the mortgagees on receipt of their mortgage amount, and for possession against defendants Nos. 6 to 12 as well, as they stated that they had got into possession by redeeming the mortgage. A further direction was made that if any amount was left over after payment of the mortgage debt, it was to be paid to Jetharam.
(3.) The present appeal has been filed by Jetharam and defendants Nos. 6 to 12 who are his sons and grandsons, and it appears that the mortgagees having been paid off were not made parties to this appeal. The finding that Ex. P-1, the contract of sale, was not vitiated by any misrepresentation or lack of understanding by the executant or by absence of consent of the sons of Jetharam is one of fact and cannot be raised in this appeal and the learned counsel for the appellants very rightly did not address any arguments on these points. It was, however, contended for the appellants that it was the case of both parties that Jetharam and his sons were members of a joint Hindu family and, therefore, there was an initial presumption that the house property which was in possession of the members of the family was joint family property. The law is, however, well settled that there is no presumption that a family, because it is joint, possesses joint property or any property. The burden of proving that any particular, property is joint family property is in the first instance upon the person who claims it as coparcenary property 'Shadilal v. Lal Bahadur', AIR (20) 1933 PC 85. The mortgagee in that case brought a suit to enforce the mortgage by sale of the property mortgaged by the father, and the sons pleaded that the mortgaged property was ancestral and that there was no necessity for the loan. It was held by their Lordships of the Privy Council that there was no presumption that a family, because it is joint, possesses joint property, and it was for the sons of the mortgagee to allege and prove that those properties were joint family properties. 'Shadilal's case', (AIR (20) 1933 PC 85), was referred to by the Madras High Court in 'Jankiamma v. Venkata Rajagopala Chinnarao', ILR (1945) Mad 378 at p. 384. It was there contended by the respondent that if any member of a Hindu joint family claimed any property in his possession to be his separate property, the onus was on him to prove that it was acquired by him out of his own funds and without the aid of the family estate. Their Lordships observed that before the appellant could be called upon to assume such burden, it was incumbent on the respondent to show that the family was possessed of some property with the aid of which the property in dispute could have been acquired.;