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Sunday, July 19, 2015

Partition suit - Appreciate of evidence - whether the House was constructed by joint funds or the site and house was self acquired property of defendant ? - Trial court dismissed the claim - Appellant court expressed that the plaintiff is entitled for refund of the amount paid by plaintiff's husband - Apex court held that Therefore, the concurrent finding of fact recorded by both the trial court as well as the First Appellate Court on the contentious issue No.4 are not only erroneous in law but also suffer from error in law for the reason that there is a positive and substantive evidence elicited by the deceased-first defendant during the course of his cross examination before the trial court, the relevant portion of which is extracted above, wherein he had in unequivocal terms admitted in his evidence that he, his sons and daughters have an ancestral property in his village and the same has not been divided between them and that he used to get the income from the said agricultural land and the same was utilized by him for the construction of the building at Sant Nagar, i.e. schedule ‘B’ property. Therefore, it amounts to putting the said property in the hotchpot of joint family property. The non-consideration of the above positive and substantive evidence by the trial court as well as the First Appellate Court in justificat ion of the claim of the plaintiff in respect of the schedule ‘B’ property has rendered the concurrent finding recorded by it as erroneous in law and therefore, the same are liable to be set aside.-2015 S.C.MSKLAWREPORTS

Partition suit - Appreciate of evidence - whether the House was constructed by joint funds or the site and house was self acquired property of defendant ? - Trial court dismissed the claim - Appellant court expressed that the plaintiff is entitled for refund of the amount paid by plaintiff's husband - Apex court held that  Therefore, the concurrent finding  of  fact  recorded by both the trial court  as  well  as  the  First  Appellate  Court  on  the contentious issue No.4 are not only erroneous in law but  also  suffer  from error in law for the  reason  that  there  is  a  positive  and  substantive evidence elicited by the deceased-first defendant during the course  of  his
cross examination before the trial court, the relevant portion of  which  is extracted above, wherein  he  had  in  unequivocal  terms  admitted  in  his evidence that he, his sons and daughters have an ancestral property  in  his village and the same has not been divided between them and that he  used  to get the income from the said agricultural land and the same was utilized  by him for the construction of the building at Sant Nagar,  i.e.  schedule  ‘B’
property.
Therefore,  it  amounts  to  putting  the  said  property  in  the hotchpot of joint  family  property.  
The  non-consideration  of  the  above
positive and substantive evidence by the trial court as well  as  the  First
Appellate Court in justification of the claim of the  plaintiff  in  respect
of the schedule ‘B’ property has rendered the  concurrent  finding  recorded
by it as erroneous in law and therefore, the  same  are  liable  to  be  set
aside.-2015 S.C.MSKLAWREPORTS


The plaintiff (the appellant  herein)  filed  civil  suit  No.2172  of  2003
before the trial court against the defendants (the respondents  herein)  for
the partition of the following properties in favour of  her  late  husband’s
share,
contending thereby that all the properties are jointly owned  by  the
family:-

|A     |Agricultural land at village Jahgirpur and at village |
|      |Patial                                                |
|B     |Property bearing No.45, Sant Nagar, East of Kailash,  |
|      |New Delhi                                             |
|C     |Property situated at Kothi No.56, Giani Zail Singh    |
|      |Nagar, Ropar                                          |

     The said civil suit was contested by the defendants wherein  they  have
pleaded in  their  written  statement  that  the  suit  schedule  properties
mentioned in the schedules ‘A’ & ‘C’ have already been  partitioned  amongst
themselves, therefore, the plaintiff is not entitled for any  further  share
in the suit properties.
In so far as the ‘B’ schedule property, bearing  No.
45, Sant Nagar, East of Kailash, New Delhi, is concerned, it  is  stated  by
them that the same cannot be a subject matter of  partition  as  it  is  the
self acquired property of the deceased-first defendant (who is  the  father-
in-law of the plaintiff) as he had acquired the same out of his self  earned
savings from his employment and he has constructed the building on the  said
property out of his own funds.
Therefore, it is pleaded that  the  plaintiff
is not entitled for the reliefs as prayed by her  in  respect  of  the  suit
schedule ‘B’ property. It is further contended by them  that  the  deceased-
first defendant was working in the  defence  department.
While  he  was  in
employment, he had purchased the said property in the year  1954  vide  sale
deed dated 22.3.1954 for a sum  of  Rs.400/-.  In  the  year  1954,  he  was
getting the salary of Rs.201/- per month i.e. Rs.120/- + (9 increments  X  9
= 81). At that  time,  admittedly,  the  husband  of  the  plaintiff  (since
deceased) was only seven years old.
The case of the plaintiff is that the dispute arose between the  plaintiff’s
husband and the defendants when her husband returned from Kuwait  to  Delhi.
With the intervention of relatives and well-wishers of the parties,  it  was
decided between them that the basement, ground floor  and  second  floor  of
the Sant Nagar property will devolve upon him and the rent earned  from  the
same will also be paid to him.
The deceased-first defendant had purchased  a
plot of land in Saini  Farms  in  the  name  of  the  late  husband  of  the
plaintiff.
The said plot was sold by the deceased-first defendant  who  gave
an amount of only Rs.1,82,000/- to the husband of the  plaintiff  while  the
balance amount from Rs.6,00,000/- was distributed  amongst  defendant  Nos.1
to 4 and the wife of defendant No.2.

In so far as the ancestral  property  of  the  agricultural  land  at  Ropar
District is concerned,  it  is  stated  in  the  written  statement  of  the
deceased-first defendant that the aforesaid ancestral property  was  divided
between him, his two brothers and one sister  and  during  the  division  of
that property, a piece of land  measuring  about  8  kanals  and  18  marlas
situated in village  Patial,  District  Ropar  came  to  the  share  of  the
deceased-first defendant in the year 1972.
The said land was given on  Batai
for cultivation and the deceased-first defendant used to  get  50  sears  of
Wheat in May and 30 sears of Maize in October every year  out  of  the  said
agricultural produce from the said  agriculture  land  which  was  used  for
consumption by the family. No cash amount  was  received  by  the  deceased-
first defendant in respect of the said agricultural property.

Trial court 
framed one of the issue as

“(iv)Whether the property bearing No.45, Sant Nagar, East  of  Kailash,  New
Delhi, has been constructed out of  joint  family  funds  or  out  of  funds
received by the first defendant from late Shri R.D. Singh,  the  husband  of
the plaintiff?”


    The trial court has answered the said  contentious  issue  no.4  against
the plaintiff and in favour of the deceased-first defendant  in  so  far  as
the claim of share by the plaintiff in the  schedule  ‘B’  property  bearing
No. 45, Sant Nagar, East of Kailash, New Delhi is  concerned.  The  suit  of
the plaintiff was dismissed by it by holding that the said property  is  the
self acquired property of the deceased-first defendant.

   In so far as the suit schedule  ‘A’  property  is  concerned,  the  trial
court has further partially decreed the same in favour of the  plaintiff  by
granting 1/5th share in the agricultural  land  in  the  village  Patial.  A
preliminary decree for partition was passed by the trial court on  21.1.2011
holding that the plaintiff has got  the  1/5th  share  in  the  agricultural
land, measuring about 8 kanals and 18 marlas.
However, she was  not  granted
any share in the suit schedule ‘B’ property, holding that  it  is  the  self
acquired property of the deceased first defendant.
The  First  Appellate  Court,  after
adverting to the various rival legal submissions  urged  on  behalf  of  the
parties and on re-appreciation of  the  evidence  on  record,  examined  the
correctness of the findings recorded on issue No.4 by  the  trial  court  in
its judgment dismissing the suit of  the  plaintiff  and  not  granting  any
share in the suit schedule ‘B’ property to  her,  has  held  that  the  said
property is the self acquired property of the deceased-first  defendant  and
declined to interfere with the judgment of the trial  court  in  respect  of
the said property.
Apex court 

We have examined the correctness of  the  findings  recorded  by  the  First
Appellate Court  on  the  contentious  issue  no.4  with  reference  to  the
evidence on record.  During  the  cross-examination  of  the  deceased-first
defendant by  the  plaintiff’s  counsel  before  the  trial  court,  he  has
categorically admitted certain facts and  elicited  the  following  relevant
positive evidence  on  record  which  supports  the  plaintiff’s  case.  The
English translation of certain admitted portions  of  the  evidence  of  the
deceased-first defendant furnished by the plaintiff’s  counsel  is  recorded
and extracted  hereunder  for  our  consideration  and  examination  of  the
findings of fact recorded on the contentious issue No.4:-
“Evidence of PW-1 Shri Ram Singh, the father-in-law of the plaintiff:

2 ………The house at Sant Nagar was built from his retirement benefits of  Rs.1
lakh and loans from friends.

3. Admits that he had received Rs. 82,000/-  from  the  Plaintiff’s  husband
but say it was not used for building his house.

4. Admits the existence of the agricultural  land  and  agricultural  income
received out of it. The land was the ancestral  property.   He  also  admits
that this income was used for construction of the  said  house.  Immediately
thereafter, he claims that it was used for his illness.

        XXX      XXX      XXX

6. He retired in September, 1980 and started reconstruction of the house  in
October 1980.

7.  Relations   with   appellant’s   husband   became   strained   when   he
misappropriated Rs. 6 lakhs for the sale of the plot at Saini Enclave.

8. That the plot at Saini Enclave was sold for Rs.6 lakhs.

9. Admits that according to document at  Exh.  P-7  (which  is  in  his  own
handwriting)  Rs.  6  lakhs  were  distributed  amongst  various   personnel
including R.D. Singh.

10.  Denies  that  Rs.6  lakhs  were  distributed  to  the  various  persons
mentioned in Exh.P/7.

11. Admits receiving money from R.D. Singh from Kuwait  as  per  Exh.P.2  to
P.3 but denies the quantum suggested.

        XXX      XXX      XXX

15. Admits that the  Plaintiff  was  staying  with  him  from  the  date  of
marriage. Further, that on his return  from  Kuwait,  R.D.  Singh  had  been
separated from the deceased father and started staying on the 2nd floor.

        XXX      XXX      XXX

17. He admits in his statement before the learned ADJ to the effect that  he
had received Rs. 82,000/- in the shape of  bank  draft  and  cash  from  the
Plaintiff’s husband.  He further admits that the statement made  before  the
learned ADJ was correct. Immediately thereafter he denies it.

18. That the ancestral land consisted of 8 kanal and 18 marla.
19. He further admits that the plaintiff’s husband (R.D. Singh) had a  share
in his 1/4th share in the ancestral land.

           XXX      XXX      XXX

21. He further admits that he has no documentary proof that the  appellant’s
husband had received Rs. 6 lakhs from the sale of plot at Saini Enclave.

22. He states that he spent approximately Rs.1,42,000/- on the  construction
of the house in Sant Nagar i.e. basement, ground,  first  and  second  floor
together one  common store on the 3rd floor.

23. ……That the loan from Sahara investment was to the tune of Rs.  30,000/-.
A further loan of Rs. 30,000/- was obtained from one Mr. Harydaya….”


In the light of the above admissions made by  the  deceased-first  defendant
in his statement of evidence  deposed  before  the  trial  court,  the  most
important fact that has come to light  in  his  admission  is  that  he  had
received money from the plaintiff’s husband while he was in Kuwait.  He  has
also admitted that the plaintiff’s husband had  a  share  in  the  ancestral
property that consists of 8 kanals and 18  marlas.  Further,  the  deceased-
first defendant has  admitted  in  his  statement  of  evidence  before  the
Additional District Judge on 11.12.2003 in another  proceeding  between  the
parties that he had received an amount of Rs.1 lakh by  way  of  bank  draft
and cash from the deceased husband of the plaintiff, while  he  was  working
in Kuwait which amount was utilised by the deceased-first defendant for  the
reconstruction of the building in the ‘B’ suit schedule  property.  In  view
of the above evidence elicited from the deceased-first defendant, the  First
Appellate Court was not right in  making  an  observation  in  the  impugned
judgment that the plaintiff is only entitled for  the  refund  of  the  said
amount from the deceased first defendant even though  there  is  substantive
and positive evidence on record to the effect that the amount  sent  by  the
deceased husband of  the  plaintiff  was  utilised  by  the  deceased  first
defendant for the purpose of construction of  the  building  upon  the  suit
schedule ‘B’ property.

Both the trial court as well as the First Appellate Court have  misread  and
mis-directed  themselves  with  regard  to  the  positive  and   substantive
evidence placed on record in justification of the  claim  of  the  plaintiff
and they have not appreciated and re-appreciated the same in favour  of  the
plaintiff in the proper perspective to record the finding  of  fact  on  her
claim for the division of  the  share  in  her  favour  in  respect  of  the
schedule ‘B’ property. Therefore, the concurrent finding  of  fact  recorded
by both the trial court  as  well  as  the  First  Appellate  Court  on  the
contentious issue No.4 are not only erroneous in law but  also  suffer  from
error in law for the  reason  that  there  is  a  positive  and  substantive
evidence elicited by the deceased-first defendant during the course  of  his
cross examination before the trial court, the relevant portion of  which  is
extracted above, wherein  he  had  in  unequivocal  terms  admitted  in  his
evidence that he, his sons and daughters have an ancestral property  in  his
village and the same has not been divided between them and that he  used  to
get the income from the said agricultural land and the same was utilized  by
him for the construction of the building at Sant Nagar,  i.e.  schedule  ‘B’
property. Therefore,  it  amounts  to  putting  the  said  property  in  the
hotchpot of joint  family  property.  The  non-consideration  of  the  above
positive and substantive evidence by the trial court as well  as  the  First
Appellate Court in justification of the claim of the  plaintiff  in  respect
of the schedule ‘B’ property has rendered the  concurrent  finding  recorded
by it as erroneous in law and therefore, the  same  are  liable  to  be  set
aside.

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