KAMESHWAR NATH Vs. RAGHUBIR MAHTO

JUDGEMENT

(1.) This miscellaneous second appeal and the civil revision have been heard together as the prayer in both is that the order of tha first appellate Court, namely, the second Additional Subordinate Judge, dated the 9th April, 1962, dismissing the appeal of the appellants in the miscellaneous appeal, who are the petitioners in the civil revision, is without jurisdiction.

(2.) The respondents first party of the miscellaneous appeal, who are opposite first party, obtained a money decree against respondent second party who is opposite second party; and in execution of that decree a piecs of land belonging to the judgment-debtor measuring 14 katlias in Madhubani town was sold on the 9th July, 1990. The appellants, who are the sons of the judgment-debtor and live jointly with him, filed a miscellaneous case under Order 21 Rule 90, Civil Procedure Code, for setting aside the sale on several grounds. The miscellaneous case was dismissed by the executing Court and its order was upheld by the second Additional Subordinate Judge of Darbhanga. One of the grounds for which the miscellaneous case was dismissed was that, inasmuch as the property in question was the self-acquired property of the judgment-debtor, me interest of the appellants had not been affected by the sale, and, therefore, they had no right to question we sale under Order 21 Rule 90, Civil Procedure Code. It was alleged by the appellants that the property was held jointly by them and their lather. They did not say as to how the property had been acquired in fact the property had been acquired partly by a sale deed and partly by settlement, both in the name of the judgment-debtor. The sale deed was produced, but no document regarding the settlement is on record. One of the appellants stated that the disputed land was acquired jointly by his family members in the name of his father; but subsequently he said that the land had been purchased with the money of his mother. The learned Subordinate Judge, therefore, rightly observed that the subsequent statement went against the earlier stand of the appellants that the property had been acquired with joint family tunas. Further, the learned Subordinate Judge pointed out that, according to the evidence of the appellants the family which consisted of the three appellants, their mother and their father had only 4 to 5 bighas of land and no other property; and, therefore, he held that there was not sufficient nucleus with the aid of which any property could be acquired, and that, as the land in dispute was admittedly acquired in the name of the judgment-debtor, who had independent source of income. It was his self-acquired property. The judgment-debtor was admittedly the head-clerk of the Sub-divisional Officer at Madhubani when the property was acquired. Therefore, he had some income from this employment. On the evidence on the record both the Courts below found that the joint family of the appellants had not sufficient nucleus with the aid of which any property could be acquired and the disputed land was the self-acquired property of the judgment debtor in view of this finding of fact, the conclusion that the petitioners had no interest in the land and, therefore, they were not competent to question the sai9 under Order 21 rule 90, Civil Procedure code, is correct.

(3.) But Mr. Aswini Kumar Sinna, who appeared for the appellants submitted that once it was established that the joint family had some nucleus, even though that nucleus might be land measuring 5 bighas or less, the presumption is that any property acquired in the name of any member of the family subsequently was joint family property, and, therefore, the observation of the learned subordinate Judge that the disputed land would be the self-acquired property of the judgment-debtor, unless it was proved that there was nucleus from which the property could be acquired, was wrong. He submitted that in the instant case there was some nucleus and that was sufficient to place the onus on the decree-holders to prove that the disputed land was the self-acquired property of the judgment-debtor. He relied on the observation of Lord Campbell in the case of Dhurm Das Pandey v. Mt. Shama Soondery Debiah, 3 Moo Ind App. 229 (PC) to the following effect: