LAKHAN SINGH Vs. BITOLA KUNWAR

JUDGEMENT

(1.) This appeal is by some of the defendants in a suit filed by the plaintiff-respondent No. 1 for a decree for possession over property shown by letters A B C D in red colour in the plaint map. The case of the plaintiff was that she had purchased the property through a sale-deed dated October 13, 1960 from her father-in-law Dharam Singh too was impleaded as defendant No. 2 in the suit. The property had been purchased by Dharam Singh through two separate sale-deeds and he was owner thereof. The allegation of the plaintiff further was that the defendants who are appel lants in this Court, were disputing her right of exclusive possession over the property and had been interfering with it. Hence, the necessity for the suit. The case of the present appellants, taken in defence, was that Dharam Singh was not possessed of any property acquired by himself and that the entire property was joint family property constituted by Dharam Singh and his sons. The property that Dharam Singh acquired under the sale deeds had been so acquired with joint family funds. He could not, therefore, transfer any part thereof through a sale-deed. Several issues were framed by the trial Court on the pleadings of the parties. The contesting defendant- appellants and the plaintiff produced evidence in support of their respective cases. Dharam Singh was examined by the plaintiff as P. W. 1 to prove her case. He fully supported her. Appellant Labhan Singh also entered the witness box as D. W. 2 and he deposed in favour of the plea taken by the contesting defendants. On appraisal of the evidence of the parties the trial Judge came to the conclusion that the property in suit was the self acquired property of defen dant Dharam Singh and he was competent to transfer it through a sale-deed to the plaintiff. He did not accept the appellants' plea that the property in question was ancestral in character so that it could not be transferred by Dharam Singh. On these findings, the suit was decreed. It may be noticed that the plea of the contesting defendants that the sale-deed was fictitious and was without consideration was also negatived by the trial Judge. In an appeal filed by the present appellants the lower appellate Court upheld the decree of the trial Judge. It re-appraised the evidence on record but found, like the trial Judge, that the house in question was purchased by defendant Dharam Singh out of his own self acquired funds and not out of the joint family funds. It affirmed the trial Court decree by dismissing the appeal. Hence, the present Second Appeal. It has been contended strenuously by the learned counsel for the appellants that the Court below had failed to decide the case having regard to the correct legal principles applicable to the facts thereof. The precise submission is that once it had been found that there was some joint family property which was being looked after by defendant Dharam Singh as its karta, any further acquisition of property by Dharam Singh had to be treated to be made from the joint family funds and that the plaintiff had not succeeded in establishing that the second defendant had sufficient resources of his own to purchase the property in dispute. It has also been urged that the Courts below ought to have gone into the question of the property in dispute having been blended by Dharma Singh with the joint family property even after having come to the conclusion that it had been purchased by him from his own resources. Since they failed to do so, their decree could not be upheld. In Lal Bahadur and others v. Kanhaiya Lal (I. L. R. (29) All. 244), the Privy Council held that where there was a nucleus of ancestral property, onus was on the defendant to show that the property in suit was self onus acquired and not pur chased from the ancestral funds. The Privy Council relied in Rundhi Appala- swami v. Raudhi Suryanarayanamaurti and others (1947 A. L. J. 587), that "proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the pro perty in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmative by that the property was acquired without the aid of the joint family property. " The dictum of the Privy Council was noticed with approval by the Supreme Court in Srinivas Krishnarao Kongo v. Narayan Devji Kongo and others (A. I. R. 1964 S. C. 379 ). The Supreme Court held that the question whether the evidence adduced by a party was sufficient to establish that the nucleus was enough out of which acquisitions could be made or that the person claiming property to be self acquired had succeeded in establishing that plea was essentially one of fact. The Courts below were alive to the plea of the appellants that there was a nucleus in the form of joint family property from which acquisitions could have been made. They were also alive to the basic question as to whether it had been established that defendant Dharam Singh had means to acquire the property from his own funds and whether he actually did so. In these circumstances, it cannot be held, as has been canvassed by the learned counsel for the appellants, that the approach of the Courts below was not in consonance with law. Inviting my attention to certain portions of the evidence, it was contended by the learned counsel for the appellants that it ought to have been held by the Courts below that the first defendant Dharam Singh had failed to establish that he had sufficient means to acquire the property in question without the aid of joint family funds. It has been urged that having regard to these statements the invevitable conclusion of the Courts below ought to have been that at the time of acquisition of the properties in dispute, there was no partition amongst the members of the joint family as had been pleaded by the first defendant and the plaintiff. As such it should have been held that Dharam Singh was not possessed of sufficient means to acquire the property in suit from his own funds. In the circumstances of the instant case, it is not possible to accept this submission. The evidence on record consists also of the statement made by the witnesses who came forward to support the case of the present appellants and the answers given by them during their cross-examination. Learned counsel for the plaintiff-respondent has drawn my attention to the statement made by appellant Lakhan Singh as D. W. 2 during his cross- examination which is to the effect that the pro perty in suit had been purchased by the first defendant from his own re sources. Thus, apart from the fact that it is a pure question of fact as to whether defendant Dharam Singh was possessed of sufficient funds of his own to acquire the property in suit, upon which the conclusion of the Courts below is generally binding in second appeal, the finding recorded by the two Courts below in this respect cannot be said to be one without any evidence to support it. The settled position of law being that it is possible for a member of a joint Hindu family to possess separate property of his own, apart from the joint family property, and that the burden to establish that such separate property had been acquired by him from his own funds being upon that member, it has to be held in this case that the evidence on record fully justified the concurrent finding of the two Courts below that the property in dispute had been acquired by defendant Dharam Singh out of his own funds without the aid of joint family funds. There is no presumption of blending of the self acquired property into the joint family property by a member of the joint family. In fact there is presumption against the blending. See C. V. Vythianatha Iyer v. C. V. Varedaraja Iyer and others (A. I. R. 1938 Mad. 841 ). In the present case the burden of proving that the property which was acquired by Dharam Singh through two sale-deeds had been blended with the joint family property by him lay upon the appellants. The necessary corollary is the principle that where it is alleged that the income from his separate property had been blended by a member of the joint family with the income of the joint family, from the property possessed by it, the burden to establish that fact would also be upon the party which alleges such blending, appellants had to prove by cogent and legally admissible evidence that Dharam Singh had blended the income from the property said to have been acquired by him separately into that of the joint family income. It has been urged that there is an admission by Dharam Singh in his statement before the Court that he used to keep the produce of the fields belonging to the joint family and to him separately together and that this statement amounted to an admission on the part of Dharam Singh that he had blended his income with that of the joint family. Quite apart from the fact that the statement by itself does not lead to the inference suggested by the learned counsel for the appellants, it is noticeable that there was no effort, while Dharam Singh was in the witness box, to elicit a clearer answer from him on this question. Read in the context in which that statement was made by Dharam Singh, it cannot be held that the income from his own property was being blended with that of the joint family income by Dharam Singh. The defendants did not raise any plea to the effect that Dharam Singh blended his separate income with that of the joint family income. The plea taken by the appellants was that Dharam Singh possessed of any separate property of his own and that the entire property was joint family property, In these circumstances, it is difficult to countenance the submission founded upon the alleged blending of his own income with that of the joint family property by Dharam Singh. On the categorical findings of the two Courts below that the property in dispute had been acquired by Dharam Singh from his own separate funds, the logical consequence would be that he had full right to transfer it through a sale-deed. The Courts below were plainly right in their conclusion to the effect. Their decree does not suffer from any legal infirmity. The appeal fails and is dismissed but, in the circumstances of the case, the parties are directed to bear their own costs of this Court. .