Gautam Kumar Choudhary, J
1. This is defendants’ second appeal against the judgment of affirmance.
2. Parties will be referred to by their original placement in the suit and will include their heirs and legal representatives substituted at different stages.
3. The plaintiff filed suit for partition of the suit properties as detailed in Schedule A of the plaint claiming 1/3rd share with a further prayer to declare registered deed of gift no.546 dated 4th January, 1999 executed by defendant no.2 in favour of defendant no.1 to be void and in-operative.
4. Plaintiff is the son, who filed the suit against his father Mahabir Prasad Keshri (defendant no.2), his son Ranjit Kumar Keshri (defendant no.3) and Smt. Ranjeeta Kumari (D1 w/o D2) for partition.
5. The main contention of the plaintiff as pleaded in the plaint is that the suit property was joint family property which was acquired by his grandfather Mangal Sao during his life time in 1937 jointly in the name of Mahabir Prasad Keshri (defendant no.2) and his other four brothers.
6. The suit properties fell in the share of Mahabir Prasad Keshri (D2) which was transferred by gift to Defendant no.1 against which the present case has been filed.
7. The case of the defendants is that the suit for setting aside the deed of gift dated 04.01.1999 has been filed in the garb of partition suit. As per their case, contrary to the averment made in the plaint, the sons of Mangal Sao were not minor. The property was jointly purchased in their name on 02.06.1937. After the death of Mangal Sao, the entire property was partitioned among legal heirs of Mangal Sao on 22.10.1961 and memorandum of partition was also drawn to that effect.
8. Mahabir Prasad Kesri gave Rs.50,000/- to the plaintiff for starting his own business at Bokaro Thermal Power which was received by his wife and pursuant to it, a deed of relinquishment was executed on 20.04.1985 in the suit property, after receiving the amount for the service rendered to defendant nos.1 and 2, out of love and affection, the said deed of gift was executed in favour of defendant no.1. The main contention is that Mangal Sao died in 1937 before the property was jointly purchased by the brothers which were not joint family property, but self-acquired property by defendant no.2.
9. On the basis of the pleadings of the parties, following main issues were framed:-
Issue No.III – Whether there was unity of title and community of possession between the parties?
Issue No.IV – Whether deed of gift no.540 executed by defendant no.2 in favour of defendant no.1 on 04.01.1999 was void, illegal, inoperative and not binding upon the plaintiff?
10. The trial court partly decreed the suit by recording a finding that Mahavir Prasad Keshri (D 2) had disclosed his age in an enquiry under Section 202 of the Cr.P.C. (Ext.7) to be 70 years as on 09.02.2000. The date on which property was jointly purchased by him was 02.06.1937 from which it will be apparent his age was 07 years at the time of said execution. Thus, minor having acquired property during lifetime of his father is untenable.
11. Furthermore, if it was not a joint family property, there was no occasion for execution of unregistered deed of relinquishment (Ext. E) by the wife of the plaintiff in the suit property.
12. Following relief was allowed by the trial Court:
a. Plaintiff was entitled to 1/5th share in the suit property.
b. Deed of gift executed by Mahabir Prasad Keshari in favour Defendant no.1 was illegal and not operative.
13. It was also held by the trial court that there was unity of title and possession over the suit property and the defendant no.2 had no authority to execute the deed of gift in favour of defendant no.1 as it was not his self-acquired property.
14. Learned first appellate court has concurred with the finding of fact and dismissed the appeal.
15. The second appeal has been admitted on the following substantial question of law:-
(i) Whether the property which has been gifted to Sri Ranjeeta Kumari wife of Ranjit Kumar Keshari by defendant no.2 Mahabir Prasad Keshri was the coparcenary property or not?
(ii) Whether the trial court without framing the aforesaid issue could have decided the suit in favour of the plaintiff?
(iii) Whether Mahabir Prasad Keshari had got any right to gift the property which he has purchased from his own fund along with his brothers?
16. It is argued by the learned counsel on behalf of appellants that it is admitted that partition took place between the brothers of Mahabir Prasad Keshri in 1961. It is also an admitted position that property in question was jointly purchased in the name of Mahabir Prasad Keshri and his brothers. Under the circumstance, the coparcenery came to an end in 1961 and the suit property will be self-acquired property of defendant no.2 in view of ratio laid down by Hon’ble Supreme Court in (2016) 4 SCC 68.
17. It is argued by learned counsel for the appellants that in view of the fact that the mother of Mahavir Prasad Keshri died in 1961 when the partition took place between their brother, and the mode of maintenance was also given in the said partition deed (Ext.B), therefore, coparcenary came to an end in 1961 and the property would devolve by inheritance under Hindu Succession Act, 1956.
18. It is difficult to be persuaded by this argument that on the death of the widow the coparcenary came to an end. There is difference between coparcenary property and the joint family property. Unity of title and possession does not come to an end with the death of the common ancestor, but takes place on partition. Death of common ancestor is only a mean to determine the share of the property in the line of the deceased. It has been held in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383:
9. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death.
19. It is further argued that initial burden of proving that the joint family was possessed of sufficient income or property which could form the nucleus for the acquisition by the joint family not having been discharged by evidence, there could be no presumption that the plaintiff has any interest in property of Mangal Sao. Further, reliance is placed on D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310 wherein it has been held,
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. It is argued on behalf of the respondent that the plea of the suit property being self-acquired property of Mahabir Prasad Keshri (defendant no.2) was incompatible with the findings of the learned Court below that he was a minor when the sale deed was executed in his favour jointly with his brothers during the life time of his father. Both the Courts below have recorded a finding that being a minor said property was acquired by the joint family income.
21. Having considered the submissions advanced on behalf of both the sides the substantial question of law nos. I & III is whether the suit property was the joint family property or was the self-acquired property of the donor Mahabir Prasad Keshri (defendant no.2). This question lies in the realm of fact and has been answered by both the learned Courts below that it was not the self-acquired property, as defendant no. 2 was minor when the property was acquired during lifetime of his father. In view of the admission in evidence given in a criminal case, his age comes to around seven years when the sale deed was executed in his favour during the life time of his father. Thus the presumption that since the property stood in his name, therefore it was a self-acquired property stands effectively rebutted. The property being joint family and ancestral, Defendant no.2 had no right to alienate it by gift in favour of Defendant no1.
The substantial questions of law are accordingly answered that the suit property was not self-acquired property of Mahabir Prasad Keshari, but was coparcenary property and therefore he had no authority to execute the gift in favour of Defendant no.1.
Second Appeal is dismissed.
Pending I.A., if any, stands disposed of.
