Heard Dr. Ram Surat Pande, learned counsel for the petitioners, learned Standing Counsel for opposite party no.1, Sri Vimal Kishore Verma, learned counsel for opposite parties no. 2 and 3 and perused the record.
The controversy involved in the present case relates to Khata No.219 of village Hariharpur Pergana Kondri Dakshini Tehsil Mahmoodabad District Sitapur. After start of consolidation proceedings , contesting respondents filed an objection under Section 9A of the U.P. Consolidation of Holdings Act ( herein after referred to as an 'Act') .
Assistant Consolidation Officer passed an order dated 17.3.1979 deciding the dispute in respect to Khata No.219 of village Hariharpur on the basis of reconciliation. Aggrieved by the order dated 17.3.1979, an appeal has been filed an appeal ( Sri Krishna Vs. Raghubar Dayal and others) under Section 11(1) of the Act, allowed by order dated 4.2.1980 and the matter was remanded to Consolidation Officer to decide afresh. When the matter came before Consolidation Officer for deciding the same afresh, he had passed an order dated 23.7.1996 against the petitioners.
Aggrieved by the order dated 23.7.1996 petitioners filed an appeal no.1071/638/407 (Ragubar Dayal and others Vs. Durga Prasad ) and contesting respondents filed an appeal no.1072/639/408 ( Durga Prasad and others Vs. Raghubar Dayal ) under section 11(1) of the Act. Both the appeals clubbed together and heard by Settlement Officer Consolidation, Sitapur, who by means of order dated 5.3.1999 allowed the appeal filed by the petitioner and dismissed the appeal filed by contesting respondents.
Thereafter against the order dated 5.3.1999 passed in appeal no.1072/639/408 ( Durga Prasad and others Vs. Raghubar Dayal ), contesting respondents filed revision no.307/288/275/271/207 ( Durga Prasad and others Vs. Raghubar Dayal and others) under Section 48 of the Act, allowed by order dated 24.10.2002.
The order dated 24.10.2002 passed by opposite party no.1/ Deputy Director of Consolidation/ Additional District Magistrate, Sitapur , has been challenged by the petitioners by filing present writ petition before this Court.
Dr. R.S. Pande, learned counsel for the petitioner has submitted that in order to decide the controversy involved in the present case it is relevant to consider the following pedegree:-
BHOOP | | ________________________________________|_______________________ | | | | Matadeen Ram Swaroop Suraj Lal Badlu | | | | died issuless Shiv Darshan Shri Keshan Rupe @ Sudarshan | died issueless | | ___________________|_________ | | | | Raghuvar Dayal Hukum Chand | (pet) (pet) | _____________ |___________________ | | | Durga Prasad Kunwar Nanhkau O.P. 1 O.P. 2 O.P. 3 Learned counsel for the petitioners submits that the then zimindar in fasli year 1333 ( year 1926) has solely granted the land recorded as Khata No.219 to Ram Swaroop and after his death same is succeeded by his son Shiv Dharshan @ Sudarshan and thereafter by Ragubar Dayal and Hukum Chand petitioners having half share each in Khata no. 219. The said fact has been duly considered by Settlement Officer Consolidation,Sitapur while passing the judgment dated 5.3.1999. However, opposite party no.1/ Deputy Director of Consolidation/ Additional District Magistrate, Sitapur without considering the findings given by Settlement Officer Consolidation, Sitapur by which he held that property was solely belongs to Ram Swaroop in deciding the revision had reversed the same without setting aside the findings given by Settlement Officer Consolidation, Sitapur and held that land in question belongs to Bhoop. Thereafter it was succeeded to his sons, namely, Matadeen, Ram Swaroop, Suraj and Badlu and after death of Bhoop and Madadeen , the others sons of Bhoop, namely, Ram Swaroop, Suraj and Badlu got 1/3rd share each of the property in question.
Accordingly, it is submitted by Dr. R.S. Pande, learned counsel for the petitioners that proof of existence of a joint family does not lead to the presumption that property held by any member of family is joint and contesting respondents have to prove that property is joint family property which they have failed to prove by way of any cogent and documentary evidence , so the impugned order passed by opposite party no.1/ Deputy Director of Consolidation/ Additional District Magistrate, Sitapur is liable to be set aside.
Sri V.K.Verma, learned counsel for respondents while defending the impugned orders submits that opposite party no.1/ Deputy Director of Consolidation/ Additional District Magistrate, Sitapur has considered the fact on the basis of material on record that the sole owner of the property was Bhoop and after his death as well as the death of Matadeen, who died issue less his three sons, namely Ram Swaroop, Sujraj Lal and Badlu have got 1/3rd share each .
It is further submitted by learned counsel for the respondents that no reason has been given by the petitioners that property in question is owned by them. Accordingly as the said fact has not been considered in appeal so opposite party no.1/ Deputy Director of Consolidation/ Additional District Magistrate, Sitapur , taken into consideration that Bhoop was the owner of property in question and passed impugned order dated 24.10.2002, as such, there is no illegality or infirmity in the impugned order, so the writ petition filed by the petitioner liable to be dismissed.
After hearing learned counsel for the parties and going through the record, the position which emerge out is that the property in question i.e. Khata No.219 has been given to Ram Swaroop in fasli year 1333 and in this regard there is an entry in revenue record, even after the enforecement of U.P.Z.A.&L.R. Act, the property was recorded in the name of Ram Swaroop.
Thus, in view of the above said fact, the onus lies on the respondents to prove of existence of a joint family does not lead to the presumption that property held by any member of family is joint. The burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which form its nature and relative value , may have formed the nucleus, from which property in question may have been acquired , the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of joint family property. However, opposite party no.1/ Deputy Director of Conosolidation/ Additional District Magistrate, Sitapur without any documentary evidence and contrary to material on record held that property owned by Bhoop when the respondents themselves failed to prove by any cogent evidence that is a Joint Hindu Family property as the burden rests upon them to prove that property is joint family property so the impugned order passed by opposite party no.1 is contrary to law laid down by Hon'ble the Supreme Court in the case of Rukhmabai Vs. Lala Laxminarayan AIR 1960 SC 335, the Court said:
"There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called "division in status", or an actual division among them by allotment of specific property to each one of them which is described as "division by metes and bounds". A member need. not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis- a-vis the family property, A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of, a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property. to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property..."
In Achuthan Nair v. Chinnammu Amma and Ors. AIR 1966 SC 411, their Lordships said:
"Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law."
In Mudi Gowda Gowdappa Sankh Vs. Ram Chandra Ravagowda Sankh (1969) 1 SCC 386, the Court noticed the observation of Sir John Beaumont in Appalaswami (supra) and reiterated that burden of proving that any particular property is joint family property, in the first instance, is, upon the person who claims it as coparcenary property. But, if possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of joint family is presumed to be joint family property. This is however, subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
In Baikuntha Nath Paramanik Vs. Sashi Bhusan Pramanik and Ors. (1973) 2 SCC 334, this Court again held, when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions, then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties, are family acquisitions.
In Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe AIR 1986 SC 79, the Court observed that character of any joint family property does not change with the severance of status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of joint family to convert any joint family property into his personal property.
In Surendra Kumar Vs. Phoolchand (1996) 2 SCC 491, the Court said:
"It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted."
In Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade (2007) 1 SCC 521, the Court said:
"... there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence."
In D.S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. (2003) 10 SCC 310, in para 18 of the judgment the Court, after a retrospect of various earlier decisions, said:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
Thus, the legal position which emerges out is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property/ fund.
In the instant case, respondents have failed to prove that property belongs to joint family property so the order dated 24.10.2002 passed by opposite party no.1 /Deputy Director of Consolidation/ Additional District Magistrate, Sitapur passed in revision no.307/288/275/271/207 ( Durga Prasad and others Vs. Raghubar Dayal and others) under Section 48 of the Act is contrary to law beside the same, it is also non speaking order as no reason whatsoever has been given by him while reverting the findings given by Settlement Officer Consolidation,Sitapur holding that Khata no.219 is solely belongs to Ram Swaroop, hence, the same is liable to be set aside.
For the foregoing reasons , the writ petition is allowed . The order dated 24.10.2002 passed by opposite party no.1 /Deputy Director of Consolidation/ Additional District Magistrate, Sitapur passed in revision no.307/288/275/271/207 ( Durga Prasad and others Vs. Raghubar Dayal and others) under Section 48 of the Act is set aside and the matter is remanded to opposite party no.1 to decide afresh on merit in view of the observation made herein above after giving adequate opportunity of hearing to the parties concerned within a period of six months from the date a certified copy of this order is produced before him.
Order Date :- 19.12.2016 dk/