HARAGOURI BATABYAL Vs. ASHUTOSH BATABYAL

JUDGEMENT

(1.) This appeal has arisen out of a suit for partition. The case of the plaintiffs as stated in the plaint filed in the suit was that Gobinda Chandra Batabyal, Umacharan Batabyal and Sripati Charan Batabyal, the three sons of late Dataram Batabyal, were members of a joint family governed by the Dayabhaga School of Hindu law, who owned and possessed joint properties descended to them from their father and that the three brothers living in commensality were joint in mess, worship and property, had joint funds out of which properties were acquired which were the joint properties of the plaintiffs and the defendants in the suit. The plaintiffs were the sons of Sripati; defendants 3, 4 and 5 were the sons of Brojogopal, son of Gobinda; defendant 6 was the son of Uma Charan; and defendant 7 was the son of Mahim, a son of Uma Charan. The three brothers mentioned above, Gobinda, Uma Charan and Sripati, combined their earnings and out; of the joint funds acquired properties jointly owned by them. The properties alleged to be joint were mentioned in five different schedules to the plaint; the schedule (Ka) properties consisted of a dwelling house with lands on which the house stood, a two storeyed brick built house valued Rs. 2,700; the schedule (Kha) properties consisted of some lands in Mouza Amchata; the schedule (Gha) consisted of movables including a Government Promissory Note for rupees 500; the properties described in schedules (Ga) and (Uma) consisted of some lands in Mouza Nabasan, the ancestral village of the parties from where the three brothers came to the town of Midnapur.

(2.) The claim for partition was resisted by defendants 1 to 5. It was asserted by the contesting defendants that the two brothers Uma Charan and Sripati were mere dependant members, and as such were maintained by Govinda, the eldest brother. There was no joint fund to which the three brothers living together were jointly entitled. The properties mentioned in the plaint with the exception of those in schedules (Ga) and (Uma) were properties acquired by Gobinda out of his own funds; these properties were not joint properties, and those mentioned in Schs. (Ka), (Kha) and (Gha) have always stood in Gobinda's name and rent and taxes in respect of the same have always been paid by Gobinda's branch of the family represented by defendants 1 to 5 in the suit. Defendant 6 filed a written statement supporting the plaintiff; defendant 7 did not appear at the trial. On the pleadings of the parties concerned, the material issue raised for determination in the case was issue 5: Whether the properties mentioned in Schs. (Ka), (Kha) and (Gha) are ejmali properties as alleged in the plaint? If so, what is the plaintiff's share therein? The learned Subordinate Judge in the Court below in a careful judgment dismissed the plaintiff's claim in respect of the properties in Schs. (Ka), (Kha) and (Gha), and directed the plaint to be returned for presentation to the proper Court with respect to the properties in Schs. (Ga) and (Uma), in view of the fact that those properties [in schedule (Ga) and (Uma)] were situated in the district of Hughly. The plaintiffs appealed to this Court from the decision of the Subordinate Judge, dismissing the plaintiffs suit with reference to the properties mentioned in Schs. (Ka), (Kha) and (Gha). In the case before us, it has to be kept in view that the question whether properties acquired by a member of a joint family were his self-acquired properties or joint properties, is a question of fact to be deter, mined on evidence; if one member of the joint family has sufficient means to purchase the properties, the presumption will be in favour of self-acquisition. It is also to be borne in mind that the mere existence of a nucleus will not impress the acquisition with the character of joint family property, unless it is shown that the acquisition could have been made from the income derived from the nucleus. The presence, therefore, of a substantial nucleus raises a presumption of an acquisition of the property which can be treated as joint property.

(3.) The properties described in the different schedules to the plaint have to be considered separately; but four things stand out prominently which must be taken into account: 1. The evidence led in the case before us established the position that the properties at Nabasan described in schedules (Ga) and (Uma) taken to be the nucleus of joint family property consisted of not more than 3 bighas of land, yielding an income of Rs. 1-8-0 a year, and the evidence on the side of the defendants can. not but be believed and must be treated as acceptable, that the income from the Nabasan property was not sufficient even to defray the expenses of the ancestral Durga Puja or costs of the settlement proceedings, though the requirements therefor were very small; amounts had to be contributed on these heads of expenditure by the co-sharers entitled to this property. There is no evidence given in the case that there was any money which could be treated as income out of the Nabasan property. Reference has been made to a very small income from the Nabasan property; and we got from defendant 6 in the case who had supported the plaintiffs claim that the income from the Nabasan land added to the income from Jajmans and disciples would be about Rs. 100 to Rs. 150 a year. We have it also from defendant 6, Mihir, that he was not in a position to say what the income from the landed property at Nabasan was. There is therefore no evidence by way of rebuttal of definite evidence coming from the side of defendants 1 to 5, the contesting defendants, that the Nabasan property did not yield an income of more than Rs. 1-8-0 a year. Mihir added in his statement in cross-examination, that no Jajmans or disciples ever paid any money in his presence, but that he heard of realization from them. On the evidence as it stands, it cannot be said that the Nabasan property described in schedules (Ga) and (Uma) could be treated as a nucleus out of which the joint properties now claimed could be acquired. 2. As to the existence of a joint fund out of which joint properties could be acquired, no money, according to the evidence which appears to us to be trustworthy, ever came from the Nabasan property. The brothers Sripati and Uma Charan had practically no income, and the eldest Gobinda was the only person who had a decent income out of which the family consisting of his brothers and other defendants were maintained. 3. The evidence coming from the plaintiffs side from defendant 6 himself, supporting the case of the plaintiffs, and the witnesses examined at his instance in support of the plaintiff's claim, go only to establish that there was jointness in mess and worship, and that there was no property excepting the property at Nabasan described in schedules (Ga) and (Uma), which was joint family property owned and possessed by the three brothers, Gobinda, Sripati and Uma Gharan.