IN THE HIGH COURT OF MADHYA PRADESH
S.A. No. 257/2015
Decided On: 05.08.2019
Hon’ble Judges/Coram: Vandana Kasrekar, J.
Citation: AIR 2019 MP 206
1. This appeal has been filed under Section 100 of C.P.C. being aggrieved by the judgment and decree passed by the Additional District Judge, Susner, District – Shajapur in Civil regular Appeal No. 64/2013 whereby, reversing the judgment and decree passed by the Civil Judge, Class-II Nalkheda, District – Shajapur, passed in Civil Suit No. 19-A/2011 dated 31/10/2013.
2. That, during pendency of this appeal, the appellant no. 2 and has withdrawn their suit vide order dated 10/08/2018.
3. This appeal has been filed now in respect of appellant no. 1.
4. The appellant/plaintiff filed a suit for declaration as well as for setting aside the sale deed dated 25/11/2010 which has been executed in favour of defendant nos. 4, 5, 6 and 7. It was alleged that the disputed property is ancestral undivided property of plaintiffs and plaintiffs have right, title, interest since their birth in the property. It was also alleged that the property has been purchased by transfer of ancestral property and, thus, at present the property is ancestral one. Tulsiram, the father of the plaintiffs has a brother Kaniram @ Kanhaiyalal and partition has already took place between them. It was also alleged that Badrilal, who is the brother of the plaintiffs filed a suit against Tulsiram in which a compromise was arrived in between Tulsiram and Badrilal. The defendant nos. 4 to 7 influenced and by corrosion and fraud executed sale deed from Tulsiram without payment of consideration in their favour. Plaintiffs have stated that they have 1/6th share in the property.
5. Defendant nos. 1, 2 and 3 filed their written statement and submitted that the sale deed was executed fraudulently by playing a fraud with Tulsiram by defendants no. 4, 5, 6 and 7.
6. The defendant nos. 4, 5, 6 and 7 filed a separate written statement denying the facts alleged in the plaint and alleged that the property is self acquired property of Tulsiram who executed sale deed in their favour for his personal needs.
7. The trial Court after framing the issues and recording the evidence held that the plaintiffs have 1/6th share each in the disputed property and they are entitled for partition and possession. The Court has further held that the property is not self acquired one. As against the judgment and decree of the trial Court, the defendant nos. 4, 5, 6 and 7 preferred F.A. No. 64/2013 and the same was allowed whereby, reversing the judgment, passed by the trial Court, and, therefore, the present second appeal has been filed.
8. Learned counsel for the appellant submits that the 1st Appellate Court has erred in reversing the judgment passed by the Court below. He further submits that the 1st Appellate Court trial Court has erred in holding that during the lifetime of Tulsiram, the plaintiffs, who are the daughters are not entitled for partition. Infact, the suit was filed for declaration with consequential relief of title of plaintiffs, who are the daughters of Tulsiram and as per Hindu Succession Act which was amended retrospectively in the year 2005 have equal share in father’s property. He further submits that the 1st Appellate Court has erred in holding that the partition took place among Tulsiram and his brother Kaniram and the disputed property falls in the share of Tulsiram after partition is self acquired property. He further submits that the 1st Appellate Court has erred in not considering the recital in the sale deed in which it has been mentioned as ‘ancestral property’. As against this recital, a presumption contrary to the nature of the partition cannot and ought not to be arrived by the 1st Appellate Court. On the basis of such arguments, learned counsel for the appellant submits that the appeal deserves to be admitted.
9. Learned Senior Counsel for the respondent no. 4 as well as learned counsel for the respondent no. 2 submits that no substantial question of law arises for consideration in the second appeal and, therefore, the appeal deserves to be dismissed.
10. Heard learned counsel for the parties and perused the record.
11. In the present case, the plaintiffs/appellants has filed a civil suit for declaring the sale deed dated 25/11/2019 as null and void. In the present case, the suit was filed on 14/07/2011 by the appellants/plaintiffs(all daughters of Tulsiram) against their father Tulsiram(defendant no. 1), brother Badrilal(defendant no. 2), mother Devbai(defendant no. 3) and respondents no. 4-7(original defendants) in whose favour sale-deed has been executed.
12. According to the plaint, the plaintiffs, raised a plea that all the daughters, father, son and mother constituted a Hindu Undivided Family and daughters therein are coparceners therein governed by Mitakshara Law. It was further stated in the plaint by the plaintiffs/daughters that father Tulsiram and his brother Kaniram @ Kanhaiyalal, their father Poona and his father Bhima owned Survey No. 356 which was ancestral and out of the income of the aforementioned Survey number other agricultural lands (suit lands) were purchased. Thus, the disputed property is the ancestral property. Therefore, the plaintiffs/daughters had 1/6th share each in the suit property alongwith defendant nos. 1, 2 and 3 in the suit lands. It was further alleged in the plaint that the alienation made by their father Tulsiram vide sale deeds 25/11/2010(Exhibit – D/3) and 23/11/2010(Exhibit – D/4) do not bind them and, therefore, these sale-deeds be declared as null and void.
13. The defendants have filed their written statement and have stated that there was already a partition in the family and Tulsiram i.e. father of the plaintiffs has given the appropriate share to his daughters i.e. plaintiffs and they are in possession of their share of the said suit lands.
14. Both the parties have produced their documents/evidence.
15. As per the aforesaid evidence, in Khasra entry of the year 1925-26(Exhibit-P/3), the suit lands i.e. Survey Nos. 158, 343 and 344 were shown to be recorded in the name of Baburao as Dakheelkar. However, Survey No. 356 was shown to be recorded in the name of Gopalrao and great grandfather of the plaintiffs namely Bheema was shown to be in cultivating possession of land bearing survey no. 356.
16. The next Khasra entries of the year 1950-51 shows that the suit lands (Survey nos. 158, 343, and 344) were recorded in the name of Bherulal as Pukhta Mauroosi and Survey no. 356 was shown to be in cultivating possession of Tulsiram and Kanhaiyalal (father and uncle of the plaintiffs). Khasra entries from the year 1951-52(Exhibit-P/4), 1952-53(Exhibit-P/5), 1954-44(Exhibit-P/6), 1955-60(Exhibit-P/7), 1960-63(Exhibit-P/8) continue to show the same position. In the year 1968-69(Exhibit-P/9), 1969-70(Exhibit-P/10) and 1963-68(Exhibit-P/11), same position was reflected. However, in Khatauni of 2001(Exhibit-P/2), name of Tulsiram appeared in Survey Nos. 158, 343 and 344(suit lands).
17. In the light of the aforesaid, documentary evidence, the plea raised by plaintiffs/daughters in Para 4 and 6 of the plaint that suit lands (survey nos. 158, 343 and 344) were purchased from the income of joint family property generated from survey no. 356 is nullified, because the revenue entries show the name of Baburao, thereafter, Kishanrao and then Manjulabai as pukhta mauroosi cultivators. However, no sale deed is produced on record to show that the suit lands (survey nos. 158, 343 and 344) were purchased by Tulsiram from income generated from joint family property (survey no. 356).
18. That, in the present case, the plaintiffs/appellants they have failed to prove the nature of property as ‘ancestral’. The First Appellate Court in Para – 21 of its judgment has held that the burden to prove the nature of the property as ancestral was on the plaintiffs.
19. The Apex Court in Para – 18 of the case of D.S. Lakshmaiah vs. L. Balasubramanyam reported in [MANU/SC/0639/2003 : (2003) 10 SCC 310] has held as under:-
18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
20. In the case of Makhan Singh Vs. Kulwant Singh, [MANU/SC/7260/2007 : (2007) 10 SCC 602] the Hon’ble Apex Court in Para – 7 and 8 has held as under:-
7. We have considered the arguments advanced by the learned counsel for the parties very carefully, and have also perused the evidence on record. There can be no doubt whatsoever with regard to the plea of Ms. Kamini Jaiswal that the interference of the High Court in second appeal should be clearly minimal and would not extend to a mere re-appraisal of the evidence. We are therefore clear that had the High Court on an appreciation of the evidence, taken a view different from that of the Trial Court and the first appellate court, the exercise would be clearly unjustified. We find, however, that the High Court differing with the courts below has proceeded on the basis and (we believe correctly) that the onus to prove that funds were available with the family with which the 29.2/3 marlas of land had been purchased by Dula Singh in the name of his sons lay on the defendant and not on the plaintiff. We find no evidence in this respect save a self serving and stray sentence in the statement of the defendant that the property had been purchased from the income of the Joint Hindu Family. It bears reiteration that the defendant had denied the execution of the two agreements Ex. P-1 and P-2 dated 3.5.1992 at the initial stage but faced with a difficult situation had later admitted that the agreements had been executed, leading to a finding by all three courts to that effect. There is also a clear recital by the defendant in Ex. P-4 that the property belonged to him and specific boundaries of the property were also given therein. The defendant’s statement had also been recorded by the Sub-Registrar on Ex. P-4 wherein he stated that he was ready to execute the sale deeds but Kulwant Singh, plaintiff had not appeared to do so. Likewise, in the original written statement a case of denial of the execution of the agreements had been pleaded and it was only by way of an amendment that the plea that the property belonged to the Joint Hindu Family had been raised. In this connection the judgment in D.S. Lakshmaiah case (supra) becomes relevant. It had been observed that a property could not be presumed to be a Joint Hindu Family property merely because of the existence of a Joint Hindu Family and raised an ancillary question in the following terms:
“The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu Family property or self-acquired property of the first appellant.”
8. The query was answered in paragraph 18 in the following terms:
“18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.”
21. It has been further held by the Learned Lower Appellate Court that no documentary evidence was produced to prove that suit lands were purchased from income of joint family property and, therefore, the suit lands, as alleged cannot be assumed to be joint family property. That, the Court below has further observed that the partition had already took place between Tulsiram and Kanhaiyalal and, thereafter, Tulsiram had further effected a partition in his family branch, giving share in agricultural lands to son, daughters and wife and, therefore, the Court below has found that the sale deeds(Exhibits D/3 & D/4) which has been executed by Tulsiram have never been challenged by Tulsiram as without consideration, fraudulent etc. So far as recitals in the sale deeds(Exhibits D/3 & D/4) executed by Tulsiram stating that the suit lands are ancestral, do not have any weightage and their evidentiary value cannot outweigh other circumstances because recitals in a sale deed at best can be considered as corroborative piece of evidence lending support and credence to substantial evidence as has been held by the Apex Court in the case of Rani Vs. Santa Bala Debnath reported in [MANU/SC/0366/1970 : (1970) 3 SCC 722).
22. Section 6 of the Act has been amended on 09.09.2005 effacing devolution by survivorship through insertion of intestate succession in Mitakshara Coparcenary by substituting the concept of intestate succession for giving equal shares to daughter at par with sons by virtue of their birth. As evident in Section 6(3), the provisions of amended Section 6 can only be invoked in case of property being ancestral. However, it is significant to note that the phrase “devolution of coparcenary property” only takes place when succession opens and not before. It is well settled that succession opens on death of Karta i.e. Tulsiram in this case. As a necessary corollary, Tulsiram being alive, the suit in issue was not maintainable.
23. Thus, in the light of the aforesaid and discussion made hereinabove, no substantial question of law arise for consideration in this second appeal. The appeal is, accordingly, dismissed.