http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  4446 of 2005

PETITIONER: Makhan Singh (D) by Lrs

RESPONDENT: Kulwant Singh

DATE OF JUDGMENT: 30/03/2007

BENCH: B.P. SINGH & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T WITH C.A. No. 4455/2005

HARJIT SINGH BEDI,J.

               These appeals   by   special  leave  arise  out  of  the  following facts:                              The plaintiff-respondent Kulwant Singh and  defendant-appellant  Makhan Singh (now through his LRs.)  herein were two of four brothers.   As per the case set up, each  brother owned < share in land measuring 40.2/3 marlas and  in a building housing an ice factory situated at Rayya  alongwith 1/8 share in the machinery installed therein.   On  3.5.1982, the defendant entered into two agreements with the  plaintiff,  -  one for the sale of his share in the land measuring  40.2/3 marlas and the building on it for a consideration of  Rs.10,000/-  with earnest money of Rs.5,000/-,  and a second  pertaining to the sale of his  share in the machinery installed  in the ice factory for a consideration of Rs.16,000/- out of  which Rs.5,000/- was paid as earnest money.      These  agreements are Ex.P-1 and Ex.P-2 on the record.  As per the  terms of the agreements, the sale deeds were to be executed  on or before 10.8.1982.   It was pleaded that the defendant  defaulted on which a notice was served on him on 19.12.1983  but as no result was forthcoming,  a suit  for specific  performance was filed on 17.1.1984.                   The defendant contested the suit on several  grounds, inter-alia, that the agreements as well as the receipts  with respect to the earnest money had not been executed by  him and that the land in question and the building raised  thereupon and the ice factory were Joint Hindu Family  property and he being one of four co-parceners  was not   competent to sell his share which made the agreement Ex.P-1  unenforceable and that no decree for specific performance  could be claimed with respect  to  the machinery which was  moveable property and at best damages or compensation  could be claimed for the breach of this agreement.  On the  pleadings of the parties, the Trial Court framed the following  issues:

1.      Whether the defendant executed agreements to  sell building and machinery as referred in  paras No.1 and 2 of the Plaint? OPP

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

2.      Whether the plaintiff has been and continuous  to be ready and willing to perform his part of  the agreement? OPP

3.      Whether the defendant has committed breach  of the agreement of sale ? OPP

4.      Whether agreement regarding sale of building  is not specifically enforceable? OPP

4A.     Whether the suit property is ancestral and/or  Joint Hindu Family property? If so to what  effect? OPP

4B.     Whether the agreement to sell is void or  unenforceable for the reasons given in paras  No. 3 and 4 of additional pleas raised in the  amended written statement? OPP

4C.     Whether the suit for specific performance is  not competent so far as it relates to agreement  for sale of machinery? OPP

4D.     Whether the suit property has been properly  described? OPP                                                      The Trial Court held that the execution of the  agreements Ex.P-1 and P-2 as well as the receipt of earnest  money by the defendant had been proved.  It further held that  the defendant had not been ready and willing to perform his  part of the contract and had thereby committed a breach  thereof.  Contrarily, it was held that the plaintiff had always  been ready and willing to perform his part of the contracts.   The findings on the issue Nos. 1 to 3 were thus recorded in  favour of the plaintiff.   The Trial Court nevertheless dismissed  the suit holding that the agreement to sell pertaining to 1/8  share in the machinery of the ice factory was not enforceable,  as the remedy available to the plaintiff was to claim a refund of  the earnest money with damages, if any.   The Court further  held that the second agreement pertaining to the sale of <  share in the land and building out of 40.2/3 marlas too was  unenforceable as the 11 marlas of land had been purchased  by the father of the plaintiff and the defendant,  Dula Singh,   and the balance land measuring 29.2/3 marlas had been  purchased by Dula Singh in the name of his four sons in equal  shares by four different sale deeds from the income accruing  from the 11 Marlas and the ice factory and as such the entire  property having the character of Joint Hindu Family property  in the hands of the four brothers, ( the defendant being one of  our co-parceners )  could not have entered into an agreement  to sell a share in the said property.  The Court further  observed that the onus to prove that there was no joint family  lay on the plaintiff, and that  he had been unable to discharge  this onus.  The Trial Court accordingly dismissed the suit on  this finding.   The unsuccessful plaintiff thereafter filed a first  appeal which too was dismissed by the Addl. District Judge,  Amritsar by judgment dated  26.5.1993.   The matter was then  taken up in second appeal by the plaintiff.   The learned Single  Judge in his judgment dated 27.11.2002 substantially

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

reversed the findings of the Courts below and partly decreed  the suit in the following terms : "In view of the aforesaid discussion,  the present appeal filed by the plaintiff is  partly allowed.  The suit for specific  performance of the agreement Ex.P-1  regarding < share of the land measuring  29.2/3 marlas is hereby decreed on  payment of the entire remaining sale  consideration i.e. Rs.5,000/- by the  plaintiff.   However, suit of the plaintiff  regarding sale of < share by the defendant  in the land measuring 11 marlas and the  building constructed thereon, which is Joint  Hindu Family property, is dismissed.  The  suit regarding specific performance of  agreement Ex.P-2 pertaining to the sale of  1/8 share in the machinery installed in the  ice factory is also decreed on payment of the  remaining sale consideration of Rs.11,000/-  by the plaintiff."

               These appeals have been filed against the judgment  of the High Court,  one at the instance of the Makhan Singh,   the original defendant, (now represented by his legal  representatives ), and a second by Kulwant Singh plaintiff.                 Ms. Kamini Jaiswal, the learned counsel for the  appellants in Civil Appeal No. 4446/2005 filed by the Lrs.  of  Makhan Singh has first and foremost argued that  under the  provisions  of Section 100 of the Code of Civil Procedure, the  High Court’s jurisdiction in Second Appeal was confined only  to a substantial question of law and interference  in a  concurrent finding of fact recorded by the trial court and  confirmed by the first appellate court was not envisaged even  if the High Court believed that a view contrary to the one  taken by the Courts below  was perhaps more appropriate on  the evidence.   She has, further, urged that Dula Singh had  first purchased 11 marlas of land some time in the year 1954  and an ice factory had been constructed thereon and it was  from  the income from the ice factory which formed the  nucleus which had funded the purchase of 29.2/3 marlas of  land by Dula Singh in the name of his sons some time in the  years  1962-1963 and the finding of the Trial Court and the  First Appellate Court therefore that the entire property  constituted  Joint Hindu Family property was correct and  could not be faulted, more particularly as the plaintiff had  been unable to show any income in the hands of the family  other than the income from the ice factory, leading to a clear  inference about the status of the property.                                      Mr. Gulati, the learned counsel for Kulwant Singh  plaintiff-respondent has, however, supported the judgment of  the High Court and pointed out that the conduct of the  defendant inasmuch as he had even denied the execution of  the agreements at the initial stage clearly belied his story as all  the courts had found that the agreements in question had  been duly executed and that he had not been willing to  execute the sale deeds.   He has submitted that the  document  Ex.P-4 which is a copy of the application submitted by the  defendant before the Sub-Registrar to mark his presence  on  10.8.1992 and a statement recorded by the Sub-Registrar  contemporaneously clearly showed that the property belonged  to him and him alone without the slightest hint  that it was  Joint Hindu Family property,  and it was after an amendment  of the written statement that the plea that the property in  question was Joint Hindu Family Property had,  for the first

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

time,  been taken.  It has also been pleaded that there was no  evidence  whatsoever to show that the aforesaid property had  been purchased from the income of the Joint family so as to  give it the character of a Joint Hindu Family property and that  the onus which lay on the defendant as the propounder of the  joint family, as envisaged by the judgment of this Court in  D.S. Lakshmaiah & Anr.  Vs.  L. Balasubramanyam & Anr.  (2003) 10 SCC 310 had clearly not been discharged.   It has,  further, been argued that the finding of the High Court that a  decree for 11 marlas of land could not be granted as this land  had been purchased by Dula Singh during his life time and  had passed on to his son by succession after his death in  1966 was therefore  Joint Hindu Family  in the hands of his  sons  too was wrong as observed in K.V.Narayanaswami Iyer   Vs.  K.V. Ramakrishna Iyer & Ors. (1964) 7 SCR 490  as  there was no presumption in law that a property purchased in  the name of a member of a family had ipso-facto the character  of Joint Hindu Family property unless it could be shown that  the family possessed a nucleus  for the purchase of the same.    It has, further, been pleaded that the finding of the High Court  that the 11 Marlas purchased  by Dula Singh in his own name  which devolved on his sons after his death in 1966  too had  the character of Joint Hindu Family property was also an  erroneous assumption  in the light of the judgment of this  Court in Commissioner of Wealth Tax, Kanpur & Ors.  vs.   Chander Sen & Ors. (1986) 3 SCC 567 in which it has been  held that there could be no presumption that if the property  purchased by a father fell to his son by inheritance it was  deemed to be in his position as a Karta  of a Hindu Undivided  Family.                 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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."

       The query  was answered in paragraph 18 in the  following terms :         "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."

         The High Court has also rightly observed that there was  no presumption  that the property owned by the members of  the  Joint Hindu Family could a  fortiori be deemed to be of  the same character and to prove such a status it had to be  established by the propounder that a nucleus  of  Joint Hindu  Family income was available and that the said property had  been purchased from the said nucleus and that the burden to  prove such a situation lay on the party, who so asserted it.    The ratio of  K.V.Narayanaswami Iyer case (supra ) is thus  clearly  applicable to the facts of the case.    We are therefore   in full agreement with the High Court on this aspect as well.   From the above, it would be evident that the High Court has  not  made a simpliciter re-appraisal of the evidence to arrive at   conclusions different from those of the courts below, but has   corrected an error as to the onus of proof on the existence or  otherwise of a Joint Hindu Family property.                 We now take up the appeal filed by Kulwant Singh   i.e. Civil Appeal  No. 4455/2005.                                                As already mentioned above, the reason as to why the  decree for specific performance to the extent of 11 marlas  regarding the sale of < share in 11 marlas of land and the  building constructed thereon has been denied even by the  High Court now needs to be examined.   In this connection,  reference must be made to Chander Sen’s  case (supra )  wherein it has been held that a son who inherits his father’s  assets under Section 8 of the Hindu Succession Act does so in  his individual capacity and not as a Karta of the Hindu  Undivided Family.  It is the admitted case before us that the  11 marlas had been purchased by Dula Singh from his income  as an employee of the  Railways  and it was therefore his self- acquired property.   Such a property falling to his sons by  succession could not be said to be the property of the Joint  Hindu Family.  We are, therefore, of the opinion that the  appeal filed by Kulwant Singh must also be allowed and we

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

accordingly so order.   The suit filed by Kulwant Singh is  accordingly decreed in toto.   Civil Appeal No. 4455/2005  (Kulwant Singh  Vs. Makhan Singh ) is allowed and the Civil  Appeal No.4446/2005 ( Makhan Singh (D) by LRs.  vs.   Kulwant Singh ) is dismissed.