JETHARAM Vs. HAZARIMAL

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the High Court of the former covenanting State of Jodhpur, and, was filed before the Ijlas-i-khas and. transferred to this Court by virtue of the provisions of Ordinance No. XL of 1949 read with Ordinance No. XII of 1950.

(2.) The respondent Hazarimal sued the appellant Jetharam for specific performance of a contract of sale of a house situated at Jodhpur and more particularly described in the plaint, on the basis of an agreement of sale Ex. P- 1, dated the 29th January 1941. Rugnath Das and his three sons were impleaded as defendants Nos. 2 to 5 as mortgagees of the property. Laduram and Jaitulal, sons of Jetharam defendant, and their minor sons were impleaded as defendants Nos. 6 to 12 on, their own application. Defendant No. 1 and defendants Nos. 6 to 12 filed separate written statements but have taken identical pleas. They contested the suit on the following grounds;

(3.) The present appeal has been filed by Jetharam and defendants Nos. 6 to 12 who are his sons and grandsons, and it appears that the mortgagees having been paid off were not made parties to this appeal. The finding that Ex. P-1, the contract of sale, was not vitiated by any misrepresentation or lack of understanding by the executant or by absence of consent of the sons of Jetharam is one of fact and cannot be raised in this appeal and the learned counsel for the appellants very rightly did not address any arguments on these points. It was, however, contended for the appellants that it was the case of both parties that Jetharam and his sons were members of a joint Hindu family and, therefore, there was an initial presumption that the house property which was in possession of the members of the family was joint family property. The law is, however, well settled that there is no presumption that a family, because it is joint, possesses joint property or any property. The burden of proving that any particular, property is joint family property is in the first instance upon the person who claims it as coparcenary property 'Shadilal v. Lal Bahadur', AIR (20) 1933 PC 85. The mortgagee in that case brought a suit to enforce the mortgage by sale of the property mortgaged by the father, and the sons pleaded that the mortgaged property was ancestral and that there was no necessity for the loan. It was held by their Lordships of the Privy Council that there was no presumption that a family, because it is joint, possesses joint property, and it was for the sons of the mortgagee to allege and prove that those properties were joint family properties. 'Shadilal's case', (AIR (20) 1933 PC 85), was referred to by the Madras High Court in 'Jankiamma v. Venkata Rajagopala Chinnarao', ILR (1945) Mad 378 at p. 384. It was there contended by the respondent that if any member of a Hindu joint family claimed any property in his possession to be his separate property, the onus was on him to prove that it was acquired by him out of his own funds and without the aid of the family estate. Their Lordships observed that before the appellant could be called upon to assume such burden, it was incumbent on the respondent to show that the family was possessed of some property with the aid of which the property in dispute could have been acquired.