PARIHAR, J. - (1.) THIS appeal is directed against the judgment and decree dated 18. 8. 1990, passed by the trial court, by which, a suit for eviction through partition, filed by the plaintiff-appellant (hereinafter to be referred to as the 'plaintiff') has been dismissed. It has been alleged that grand father of plaintiff Shri Ganga Ram had left lot of movable and immovable properties at the time of his death in the year 1952. All the properties came in possession of the plaintiff's father Laxmi Narayan in the capacity of Karta and Manager. The immovable properties left by Ganga Ram included a house bearing No. 1567, situated at Chokri Modi Khana, Rasta Sanghiji, Jaipur City. It has further been alleged that father of plaintiff Laxmi Narayan had five sons and two daughters. The plaintiff claimed that plaintiff's father Laxmi Narayan purchased one house at Chaura Rasta vide sale deed dated 7. 11. 1959 in the name of Smt Nathi, wife of elder son Bhanwar Lal and Devraj, minor son of Bhanwar Lal. One more shop in Gopal Ji Ka Rasta was also purchased by father of the plaintiff Laxmi Narayan in the name of Smt Nathi wife of Bhanwar Lal. Another shop situated at Chaura Rasta had been purchased by father of the plaintiff in auction in the name of Bhanwar Lal, however, the same shop was subsequently exchanged with a shop belonging to one Radheyshyam Paanwala through registered exchange/transfer deed. Since all the properties, referred to above, belonged to Laxmi Narayan as Karta and Manager of the family, the plaintiff was entitled for share in the same by way of partition. The claim in regard to gold and silver ornaments as also money decree left by grand father Ganga Ram has also been raised.
(2.) IN reply, the allegations made by the plaintiff have been denied by the defendants-respondents (hereinafter to be referred to as the 'defendants' ). It has been submitted that so far as immovable properties left by grand father Ganga Ram is concerned, a partition had already taken place in the year 1963 during the life time of father Laxmi Narayan, who died in the year 1972 and all brothers are in possession of the respective portions as per the partition and family arrangement. It has also been submitted that other immovable properties have been purchased by the elder brother Bhanwar Lal (since deceased) from his own income and resources. The claim on decree and ornaments left by grand father Ganga Ram have been denied. It has further been submitted on behalf of the defendants that even Laxmi Narayan had made a will of his immovable property in favour of one of his sons defendant- Roop Narayan on 31. 11. 1971, which clearly indicates that apart from partition already taken place the properties alleged to be purchased in the name of defendant Bhanwar Lal, his wife and minor son does not belong to the joint family nucleus. As per pleadings of the parties, following issues have been framed by the trial court:- 1. Whether Granga Ram at the time of his demise, left huge movable and immovable properties, which came to the father of plaintiff-Laxmi Narayanji in the capacity of Karta of the family? 2 Whether Haveli No. 1567 facing south at City Jaipur, Chowkri Modikhana Rasta .Sanghiji was partitioned by Laxmi Narain in October, 1963 in between plaintiff and defendants No. 1 to 4? 3 Whether father of the plaintiff had purchased a House from Ram Chandra and other against a sum of Rs. 749/- on dated 7. 11. 1959 from the ancestral movable and immovable property and sale deed was got done in the name of defendant No. 1, defendant No. 8 and defendant No. 9? 4 Whether father of the plaintiff purchased property as mentioned in para No. 5 of the plaint on dated 11. 5. 1958 for a sum of Rs. 6699/- in the name of defendant No. 8, from ancestral movable and immovable property? 5 Whether the father of the plaintiff had purchased the property mentioned in para No. 6 of the plaint on dated 13. 7. 56 in the execution of the decree titled as Johri Lal versus Gulab Chand in auction in the name of the defendant No. 1 from the ancestral movable and immovable property? 6 Whether the defendant No. 1 to 5 recovered a sum of Rs. 1800/- in a decree against Bhagwan Das Thathera? 7 Whether the golden ornaments weighing 328 tolas as per enclosed list along with plaint left by Ganga Ramji at the time of his death is in possession and power of defendant No. 1 to 5? 8 Whether the property as mentioned in para no. 5 of the plaint, was purchased by defendant No. 1 by selling a Chain of Moti Manak received from the parents of his earlier wife and taking money on loan? 9 Whether the plaintiff is entitled to get 4/21 share from the total movable and immovable joint property of Rs. 2,04,450. 00? 10 Whether the IInd Floor of House No. 1567 is in possession of the plaintiff. 0As mentioned in para No. 10 of the plaint the plaintiff had constructed and made alternation in the houses of this floor at the cost of plaintiff himself and got fixed 16 pairs of doors and get connection of water and electricity which may be allotted to the plaintiff in partition? 11 Whether the defendant No. 1 started to earn and live separately since 1950? 12 Whether the plaintiff should have paid ad velorem Court Fee? Ten witnesses have been examined on behalf of the plaintiff, whereas, thirteen witnesses have been examined on behalf of the defendants. Documentary evidence has also been submitted on behalf of the both the sides. While deciding issue No. 1, 6 and 7 the trial court held that the property situated at house No. 1567, Chokri Modikhana, Sanghiji Ka Rasta, Jaipur belonged to grand father Ganga Ram, however, since it has not been proved that any other property was left by Ganga Ram, the issue No. 6 and 7 were decided against the plaintiff. So far as issue No. 2 is concerned, it has been held that the partition of Haveli No. 1567, situated at Chokri Modikhana, Sanghiji Ka Rasta, Jaipur was done by Laxmi Narayan among his five sons in October, 1963. Thus, the above issue was also decided against the plaintiff. Issues No. 3, 4, 5 and 8 were decided jointly. It has been held that since the defendant Bhanwar Lal has been able to prove the other properties in question been purchased by him from his own income and resources, all the issues were decided against the plaintiff. The issue in regard to Haveli No. 1567 already having been decided against the plaintiff, issue No. 9 and 10 were also decided against him. As per evidence, issue No. 11 was also decided in favour of the defendant Bhanwar Lal. Issue No. 12 was not pressed. In view of conclusions and decision given on the respective issues, the suit of the plaintiff was dismissed by the trial court vide the impugned judgment. Mr. R. P. Singh, learned counsel for the plaintiff, submitted that partition alleged to have taken place in the year 1963 has not been proved at all. There was no written agreement, what to say of registered deed. Only a blue print of a map has been submitted which is alleged to be part of partition agreement is not admissible under the law. The execution of the will by father Laxmi Narayan has also been denied. It has been submitted that as per evidence led on behalf of the plaintiff, father and all the sons were living together and had joint income. In case the defendant Bhanwar Lal was claiming purchase of separate properties from his own income and resources, the burden was on him to prove the same, whereas, no accounts of separate income had been produced by the defendant Bhanwar Lal. The issues in regard to ornaments and money decree were not pressed by learned counsel. Mr. R. K. Agrawal, learned counsel for the defendants, on the other hand, submitted that all the family members, except the plaintiff, have admitted the partition already taken place in the year 1963 itself and possession of respective portions, in a way, have also been admitted by the plaintiff himself. The will executed by father Laxmi Narayan in the year 1972 in favour of one of his sons not only give the entire history and facts but also have duly been proved by the witnesses produced on behalf of the defendants. It has further been submitted by Mr. Agrawal that partition can even be oral and a valid inference can be drawn from the entire circumstances. It has also been submitted that till death of father Laxmi Narayan in the year 1972 no objection was ever raised by the plaintiff in regard to respective possessions on the properties in dispute. It has been submitted that the defendant Bhanwar Lal has been able to prove, by way of oral as also documentary evidence, that three properties in dispute were purchased by him in his name and in the name of his wife and minor son from his own income and resources and there was no contribution of the father and family in the same. The plaintiff has miserably failed to prove the joint family nucleus in the present matter.
(3.) AFTER having considered submissions of learned counsel for the parties, I have carefully gone through the material on record as also the judgments cited at the Bar. The Hon'ble Supreme Court, in case of 'appasaheb Peerappa Chandgade vs. Devendra Peerappa Chandgade & Ors' (AIR 2007 SC 218) = 2007 (1) RLW 621 (SC), while referring to earlier judgments, has observed that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of burden it shifts on the defendant to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. The Court further observed that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then 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 by cogent and necessary evidence. In the present case, Haveli No. 1567, Chokri Modikhana, Rasta Sanghiji, Jaipur has been treated as ancestral property belonging to grand father Ganga Ram, however, it was for the plaintiff to prove that other properties were purchased by Laxmi Narayan in the years 1956, 1958 and 1959 in the name of his elder son Bhanwar Lal, his wife and minor son from the income of joint family nucleus. The plaintiff had examined ten witnesses including his neighbours, a journalist friend, brother-in-law and clerk of an Advocate, however, all the statements are vague in this respect. Neither any accounts of joint family income had been produced nor any other proof has been submitted to show that the property as alleged was purchased by father Laxmi Narayan from the joint Hindu family income. On the other hand, defendant Bhanwar Lal has clearly stated that all the properties, as alleged, have been purchased by him from his own income and resources. It has been submitted that he had started his own separate business in the year 1950 itself. The first property was purchased in auction by him in the year 1956, which was subsequently exchanged with another shop after execution of registered deed in his name. Subsequent purchases of property in the years 1958 and 1959 were made either by mortgaging the shop purchased in the year 1956 or his own savings and sale of ornaments of his wife. The mortgage deed as also the exchange/transfer deed and the sale deeds have duly been proved by the defendant Bhanwar Lal. The plaintiff has also admitted that he was having his own separate business since 1953 and also purchased some properties in his own name in the year 1963-64. There is no evidence at all in regard to pooling of joint family income. Even the income of father of Laxmi Narayan has not been proved. Thus the plaintiff having failed to even discharge his initial burden, the defendants, have by way of cogent and necessary evidence, been able to prove that other properties in dispute were acquired without aid of the joint family income. Even if all the family members are living in the same premises, there cannot be any presumption or inference in regard to joint family nucleus so far as income is concerned until and unless proved by cogent legal evidence. ;