LALBARANI DEBI Vs. BHUTNATH CHATTORAJ

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff who had instituted a suit for declaration of his exclusive title in 13 items of property listed in the schedule to the plaint, and for a declaration that the entries in the current revisional settlement record in respect of the suit property are incorrect. The properties in dispute fall within Mouza Ukra. The plaintiff's case is that the properties were acquired by him with his own money in different periods either in his own name or benami of others and he has been possessing the properties all along since acquisition. The defendant No. 1 resisted the suit contending inter alia that most of the suit properties were acquired from the income of the joint properties of Kedar Nath Chattaraj, the father of the plaintiff and that the plaintiff had no capacity for earning money. It is necessary at this stage to give the history of the family, the members of which are involved in the present litigation. One Kedar Nath Chattaraj, father of the plaintiff had five sons viz., Jyotirmoy, Brojeswar, Jitendra (plaintiff), Sadananda and Panchanan, Jyotirmoy separated during the lifetime of his father. His son pro forma defendant No. 3 Brojeswar died during the lifetime of his father leaving his son Bhutnath, being the defendant No. 1 contesting the present appeal. Sadananda died during the lifetime of his father leaving a widow who also subsequently died. Kedar Nath died in 1342 B. S. and thereafter the plaintiff, Panchanan (pro forma defendant No. 2) and defendant No. 1 Bhutnath lived in one joint. family. Kedar Nath left 14 bighas of land, out of which Jyotirmoy while separating from his father took 31/2 bighas of land.

(2.) The plaintiff's case is that he used to work as a colliery contractor and earned separate income. He had also got by a Deed of Gift 19 bighas of land in 1950. From his separate income he had acquired the disputed property in which he claims exclusive title. According to him the disputed properties have nothing to do with the joint properties inherited from Kedar Nath. The joint properties were partitioned on 3rd Falgun, 1360 B. S. between plaintiff, defendant No. 1 and Panchanan and each was allotted 31/2 bighas of land specifically. As already pointed out the defence case is that the joint family nucleus inherited from Kedar Nath was utilised in acquiring the disputed properties though some of them stand in the name of the plaintiff. The question, therefore, is whether the properties listed in the schedule to the plaint were the self-acquired properties of the plaintiff or are the joint properties in which the plaintiff has a share only. The learned Subordinate Judge. Asansol found that the plaintiff had separate source of income and that the nucleus of the joint family viz., the property of Kedar Nath was not sufficient for acquisition of large number of properties standing in the name of the plaintiff, after defraying the expenses of joint family of Kedar Nath and his sons, their wives and children. The suit properties were therefore held to be self-acquired properties of the plaintiff and the suit was decreed accordingly. The lower appellate court concurred with both the findings of the learned Munsif viz., that the nucleus was not sufficient for the acquisition of the suit properties and that the plaintiff had separate income from his 19 bighas of land and also from his business as a colliery contractor. In spite of the above finding, the lower appellate court considered each item of the properties separately and Item Nos. 3 and 4, plot No. 2711 of Item No. 5, Item No. 7, plot No. 2615 of Item No. 8, Item No. 9, Item No. 10 and plot No. 2862 of Item No. 12 and the property of schedule Kha were declared to be the properties belonging to the plaintiff alone. With regard to the properties of Item Nos. 1, 2, 6, 11 and the rest of the plots of Item No. 5 viz., plot No. 3329, 4238 and the rest of the plots of Item No. 8 viz.. plot Nos. 1671 and 1672 and rest of the plots of Item No. 12 viz.. Plot No. 2846 and plot No. 78/858 of the plaint, the plaintiff was declared to have 8 annas share only, and the said plots were directed to be jointly recorded in equal share in the names of the plaintiff and the defendant. The judgment and the decree of the learned Subordinate Judge was modified accordingly.

(3.) The plaintiff has instituted this appeal against that portion of the judgment and decree by which the properties referred to above were declared to be joint properties. The learned Counsel appearing for the plaintiff-appellant mainly contended that in view of the concurrent findings of both the courts that the nucleus of the joint family was not sufficient to acquire the suit properties and that the plaintiff had separate income out of which the said properties could be acquired the lower appellate court should have come to the conclusion that the presumption of the said properties being joint properties has been rebutted and that all the properties should have been declared to be self-acquired properties of the plaintiff.