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PETITIONER: SURENDRA KUMAR

       Vs.

RESPONDENT: PHOOLCHAND (DEAD) THROUGH LRS. & ANR.

DATE OF JUDGMENT:       02/02/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) RAMASWAMY, K.

CITATION:  1996 AIR 1148            1996 SCC  (2) 491  JT 1996 (2)   127        1996 SCALE  (1)644

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B.PATTANAIK. J.      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 lndore  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 grand father 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

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relinquished his  share  in  the  compensation  amount.  The respondents 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. lt 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 grand father 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  applications.  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 Hindu 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 grand father  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  entitle 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   re-appreciated  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 scrutinized the evidence and came to the conclusion  that land  in question  was the joint family property. The  court also  came to  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 grand father 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 grand son 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.      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  arld even  though the respondents knew about the same yet the property was not included 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

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present claim  is mere  after thought.  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  grand father  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.      Learned counsel  for the  respondent on  the other hand condended 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 to 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.      In vies  of rival  contentions,  two  questions  really arise for our consideration:      1) Whether  non inclusion  of the  disputed property in the earlier  partition suit  will  in  any  way  affect  the present proceedings  by  application  of  Order  II  Rule  2 C.P.C.?.      2) Whether  the findings of the two courts below on the question that the property is a joint family property can at all be interfered by this Court?      So far  as the  first  question  is  concerned  on  the admitted position  that the  sale deed  in the  name of  the appellant was  executed only  in the  year 1961 and the suit for partition of the Joint Family property by Ramchandra had been filed  in the  year 1953,  the said  property could not have been included in the partition suit and therefore non inclusion of  the property  is  not  fatal  to  the  present proceedings. In  our considered  opinion the  provisions  of Order II  Rule 2  C.p.C. cannot  be applied to the facts and circumstances of  the present  case. In  this connection  it will be appropriate to consider the contention raised by the learned counsel  for the appellant that the respondents came to know  about the  property  when  they  filed  application before the Land Acquisition Authority and still they did not approach  the   appellate  forum  in  the  Civil  Court  for inclusion of  the property  and on that score they would not be allowed  to agitate  in the  present proceeding.  We  are afraid this  submission does not have any substance.That the property having  been acquired and an award has been passed, any claim  in respect  of the  said compensation  amount can only  be   made  by   raising  a  dispute  before  the  land acquisition authority  and that has been done in the present case. We  also do  not find  any material  in support of the contention raised  on behalf  of the learned counsel for the appellant that  the respondents  must be  presumed  to  have knowledge about the purchase of the property since Chhogalal was in  possession of the same since l951. We have carefully scrutinized the  material on  record and we do not find iota of evidence  in support  of the aforesaid contention. In the aforesaid premises  the irresistible  conclusion is that non inclusion of  the disputed property in the earlier partition suit does  not in  any way affect the present proceeding and therefore in  a reference  under  Section  30  of  the  Land Acquisition Act  the Court  was fully  justified in deciding the question  as to  whether the  property is  joint  family

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property or  is the self acquired property of the appellant. The provisions of Order II Rule 2 C.P.C. has no application.      Coming to  the second  question it  is an admitted fact that Chhogalal  was the  eldest member of the family and was the manager  of the  Joint family  consisting of  Chhogalal, Ramchandra and  Phoolchand. The  agreement to sale is stated to have  been made  in the year 1951 and consideration money had been  paid in  1951 and  1952 and  finally sale deed was executed in the year l961. At that point of time the present appellant  was  a  minor  and  the  property  was  therefore purchased in  the name  of the  minor with  Chhogalal as the guardian. In  course of  the proceedings appellant has taken the specific plea that the consideration money had been paid by his maternal grand father and that plea has been rejected by the  courts below  on consideration  of material with the finding that the appellant has failed to establish the same. Thus there  is no  material to  establish that consideration money for the property was paid by the appellant from out of his separate  funds. It  is no  doubt true  that there is no presumption that  a family  because it  is  joint  possessed joint  property   and  therefore  the  person  alleging  the property to  be joint  has to  establish that the family was possessed of  some property  with the  income of  which  the property could have been at required. But such a presumption is a presumption of fact which can be rebutted. But where it is established  or admitted  that the family which possessed joint property  which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self  acquisition to  establish affirmatively  that the property  was acquired  without the  aid  of  the  joint family. Both  the courts below have scrutinized the evidence bearing in  mind  the  aforesaid  legal  position  and  have rightly come to the conclusion that the property in question is the  joint family  property. We  see no justification for our interference  with the  said concurrent  findings of the two courts  below. The  appreciation of  evidence  has  been rightly made bearing in mind the correct legal position. The appellant thus  has utterly  failed to  establish  that  the consideration money  for the  property was  paid out  of his personal funds.In  the aforesaid circumstances agreeing with the two courts below we hold that the property was the joint family property and therefore the respondents have 1/3 share each in  the compensation  amount. In the aforesaid premises this appeal  is devoid of merits and the same is accordingly dismissed but in the circumstances without any order as to costs.