SURENDRA KUMAR Vs. PHOOLCHAND DEAD

JUDGEMENT

(1.) This appeal is directed against the Judgment of the Madhya Pradesh High Court in a proceeding under Section 30 of the Land Acquisition Act (hereinafter referred to as 'the Act'). A property measuring 25.12 acres appertaining to survey Nos. 70 and 71 in village Narwal in the District Indore had been purchased from one Mithulal under a registered Sale Deed in the year 1961 in the name of appellant Surendra Kumar by grand father Chhogalal as guardian. The said property was acquired for the industrial area Indore and the Land Acquisition Collector passed an award on 5-3-1966 under Section 11 of the Act and compensation of Rs. 99.373/- was granted to the appellant. Subsequent to the passing of the award the respondents appeared before the Land Acquisition Collector and claimed that the property in question is joint family property and they are entitled to share in it. Dispute having arisen to the apportionment of the compensation. The Land Acquisition Collector referred the dispute for the decision to the Court under Section 30 of the Act. Before the Ld. Additional District Judge it was contended on behalf of the appellant that the land in question has been purchased in his name from out of his funds though his grandfather Chhogalal acted as his guardian and therefore the same cannot be treated to be joint family property. It was also contended that Ramchandra one of the claimants had filed a suit for partition of the joint family property which was registered as Civil Suit No. 51/53 and in that suit the disputed property had not been included and present claim therefore is barred by the provisions of Order II, Rule 2, C. P. C. The alternative contention also have been raised on behalf of the appellant to the fact that Phoolchand had relinquished his interest in the joint family property by executing a release deed in favour of Chhogalal and consequently he also relinquished his share in the compensation amount. The respondent on the other hand contended that the property has been purchased by Chhogalal in the name of the appellant from out of the funds of the joint family, and as such they are entitled to 1/3 share in the compensation amount. It was also pleaded that the so called release deed is null and void and non-operative and is not binding. The Ld. Additional District Judge on thorough consideration of the matter before him came to the conclusion that Chhogalal grandfather of appellant-Surendra Kumar was managing the affairs of the business of the Joint Hindu Family and the Joint Family had sufficient funds to purchase the land in question. He also found that the earlier partition suit having been filed in the year 1953 and the disputed property having been purchased only in the year 1961, the same could not have been included in the suit for partition and such non-inclusion is not fatal to the case of the respondents and Order II, Rule 2, C. P. C. has no application. On the question as to whether the property is a joint family property or not, it was found that consideration money for purchasing the property had been paid by Chhogalal from out of the Joint Family funds and as such it was the joint family property. The plea of the appellant that the consideration money was in fact paid by appellant's maternal grandfather was rejected as the appellant failed to adduce sufficient evidence on that score. With these findings it was directed that the appellant as well as the respondents would be entitled for 1/3 share each in the compensation amount. The aforesaid judgment of the Addl. District Judge in Miscellaneous Judicial Case No. 9 of 1973 was assailed in appeal which was registered as First Appeal No. 59/1977. The High Court reappreciated the evidence on record and affirmed the findings of the Ld. Addl. District Judge. Bearing in mind the correct legal position with regard to the presumption of joint interest to the property in question the High Court scrutinised the evidence and came to the conclusion that land in question was the joint family property. The Court also came to the conclusion that the Sale Deed in favour of the appellant having been executed in the year 1961, non-inclusion of the property in the earlier partition suit of 1953 cannot be held to be fatal to the present proceedings. The Court also further held that the appellant having raised the plea that the consideration money for the land was paid by the maternal grandfather and having failed to establish the same and no material having been produced to establish that the property was purchased out of the funds of the appellant, the conclusion is irresistible that it is the joint family property and has been purchased by Chhogalal the manager of the joint family property in the name of grandson the present appellant and consequently the property is the joint family property. With these conclusions the appeal having been dismissed, the present appeal has been preferred.

(2.) The learned counsel appearing for the appellant argued with force that though the sale deed was executed in the year 1961 but the property was in possession of Chhogalal since 1951 and even though the respondent knew about the same yet the property was not included in the earlier partition suit filed in the year 1953 and therefore the provisions of Order II, Rule 2, C. P. C. must be attracted. Alternatively he argued that at any rate by 1966 the respondent having come to know about the existence of the property and at that time the appeal against the judgment in Civil Suit No. 51/53 have been pending and yet the property not having been sought to be brought over in the appeal, it must be assumed that the present claim is mere afterthought. Lastly, the learned counsel contested the finding that the property is the joint family property and rejection of the case of the appellant that the consideration money was paid by maternal grandfather is wholly unsustainable in law and is merely arbitrary and, therefore, this Court would be justified in reversing the finding with regard to the jointness of the property.

(3.) Learned counsel for the respondent on the other hand contended that two Courts below having examined the relevant materials in its proper perspective and having recorded the finding that the property is the joint family property, it would not be appropriate for this Court to interfere with the same particularly when no question of law arises in this regard. The learned counsel also contended that the earlier suit filed by one of the respondents being in the year 1953, and at that point of time the property not having been purchased, the question of inclusion of the same in the earlier suit did not arise and consequently the Courts below rightly held that the non inclusion cannot be held to be fatal to the present suit.