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.
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
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.
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.
