SHYAMLAL Vs. BABULAL

JUDGEMENT

(1.) PLAINTIFFS/respondents No. 1 and 2 instituted a suit for declaration, partition and perpetual injunction mainly with the allegations that the private parties to the suit were legal heirs of Munnalal and Gyarasibai. After the death of Munnalal,defendant/appellant No. 1 being the eldest, became manager of the Joint Hindu Family, which owns agricultural land in area 56 Bigha and two Biswa at Vidisha,which was recorded in the name of defendant/appellant No.1.Out of this land, an area of 28 Bigha 1 Biswa was sold in the year 1963. Remaining land described in para 3 of the plaint, is the subject-matter of this appeal. It was alleged that a division of the capital of the business of Joint Hindu Family took place on 25/10/1973 between the plaintiffs, defendants No. 1 and 2 and widow of Munnalal. On 12/5/1977, residential houses belonging to the Hindu Joint Family were also divided. However, the suit land remained undivided because the parties used to share the crops of agricultural produce till the year 1987. In the year 1988, defendant/appellant No. 1 refused to provide agriculture share to the plaintiffs. On enquiry, they came to know that the defendant/appellant No. 1 got the suit property partitioned between him and his children and got it recorded separately in separate shares in revenue records. Hence, the suit with the following reliefs:-

(2.) DEFENDANTS Nos.1,2 and 4 to 7 submitted their written statement denying thereby the claim of the plaintiffs. It was denied that the suit land was Joint Hindu Family property. On the contrary, it was averred that it was self acquired of the defendant/appellant No.1. It was further stated that partition took place on 25/10/1973 and thereafter plaintiffs and defendants No. 1,2 and 3 occupied then- respective portions and started independent business. Alleged partition on 12/5/1977 in respect of the house property was denied in specific. Since the suit land was purchased by defendant No. 1 by his self acquired money it was rightly partitioned between him and his sons.

(3.) LEARNED courts below after appreciating the evidence found that the father Munna Lal was engaged in business which was inherited by his children. Defendant/appellant No. 1 being the eldest, started managing it. Land in question was purchased in the year 1957 and 1959. No other source of income could be established except the business inherited from the father. Although, the defendant No. 1 has stated in his written statement that the suit land was his self acquired property, he failed to establish the said fact. On the contrary, in para 2 of his statement, it was earlier stated that the suit land was purchased by money raised on account of sale of jewellery of defendant No.1's wife. This was objected for want of pleadings and was not allowed to be recorded. Thereafter,defendant/ appellant No.1 in next para i.e. Para 3 took another stand that it was purchased by him by his own money. It is pertinent to note that the defendant/appellant No. 1 has, in his statement nowhere stated that he had raised sufficient money from any other source for the purchase of the disputed land. On the contrary, he had admitted in para 14 of his statement that the shop left by his father was managed by him and his brother Mangaljeet,after the death of his father. He further admitted in the same para that he was manager of the Joint Hindu Family. Father of defendant/appellant No. 1 and plaintiff namely Munna Lal died in the year 1942 as admitted in para 13 of his statement by defendant/appellant No. 1. In para 18 he further admitted that after the death of his father he along with his mother and brother remained joint up to the year 1957. Plaintiff / respondent No. 1 opened shop in the year 1970 with the capital provided by defendant/appellant No. 1 as stated in para 19. Thereafter, in the year 1977 a division took place which according to the plaintiffs did not include the disputed land. This is stated to have been effected vide Ex. P/3. Copy of this document is on record as Ex. P/3-C, which reveals that a division of capital of the business took place vide Ex. P/3 or Ex. P/3-C. Thus, contention of the plaintiffs gets strengthened that at the time of division vide Ex. P/3-C agricultural land was not partitioned but was kept joint.