Appellate Division Cases
Cinmoy Chowdhury and another …………………..Appellants
Sree Mridul Chowdhury and other…………………. .Respondents
Mainur Reza Chowdhury C. J
Mohammad Fazlul Karim. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 26th November, 2002
provision of Section 102, 103 and 104 of the Evidence Act. Partition Suit, it’s Scope and Maintainability and onus of proof. In a partition suit for immovable property all the incidental questing of title, however, complicated it may be can be decided and disposed of finally.
Onus of proof is spirited and spitted up not fixed like criminal cases see sections 102,103 and 104 of the Evidence Act.
49 DLR (Ad) 68 ( Paragraph 10).Shashi Kumar vs. Nagendra Nath 1982 PLD(HC)
36 (Para 8) Sahimon Bewa vs. Sahiruddin and others 38 DLR – 265 Para 12, XXIX CWN (P.C.) -1037- Bhagwani Kunwar and others us Mohan Singh and others D.F. Mullah 11th edition Section 228(2) and section 233(1) of the same edition as, Joint property of a Hindi family. AIR – 1965 (SC) 289 (paragraph 15). AIR 1^69 (SC) 1076 (para 6) Jitendra Nath Mistry Versus Abdul Malek Howlader and others 54 DLR(AD) 106 para 6 1955 SCR I page 7 AIR – 1965 (SC) 289 and, 292
Mr. T. H. Khan the learned consul appearing for the appellants submits that the instant suit for partition Simplicities is not maintainable without a prayer for declaration that the Ext. Ga is not a genuine document, we notice that both the courts below found that the suit for partition is maintainable, we endorse the view of he courts below and hold that in a suit for partition all the incidental questions of title, however complicated, it may be, can be thrown away or driven out on the ground of maintainability of the suit and as such the argument as to non-maintainability of the suit as advanced by Mr. Khan perishes without any footing………… (9)
Onus of proof in a civil litigation is generally lies upon the plaintiff but some time it is splitted up between the parties and some time it is shifted upon the defendants as well, according to the respective cases of the parties, as they plead, in view of the concept and the meaning of the provision of section 102, 103 and 104 of the Evidence Act …………..(15)
Civil Appeal Nos. 13 of 2001. From the Judgment and order dated 24.05.2000 passed by the High Court Division in F. A. No. 213 of 1996).
T. H. Khan, Senior Advocate, (with Mihir Kanti Majumder, Advocate) instructed by A. K. M. Shahaidul Huq, Advocate-on-record………… For the Appellants.
Mahlubey Alam, Senior Advocate, instructed by
Chowdhury Md. Zahangir, Advocate-onrecord.
For respondent No. I .
Not represented………………. Respondent Nos. 2-38.
1. Abu Sayeed Ahammed , J:- Defendants are appellants . this appeal is against the judgment and decree dated 24.5.2000 of a Division Bench of the High Court Division passed in first Appeal No. 213 of 1996 dismissing the appeal and affirming the judgment and decree of the Subordinate Judge, 3 r ” court and Arthe Rina Adalat, Chittagong in other Suit ( Partition), No . 78 of 1992 (earlier other suit No. 74 of 1984) instituted by the respondent No. 1 Mridul Chowdhury as sole plaintiff.
2. There are two categories of properties in this suit, properties in schedule ‘ka’ to ‘cha’ are
the ancestral rural properties of the parties including the homestead and pond ofyheir predecessors. The second category of the properties are urban immovable properties situated in the Chittagong city purchased in the name of the father of the defendant Nos. 12 to 13, now appellants, including two studios and movable property.
3. According to the plaintiff first category properties originally belonged to chandra
kumar who died leaving two sons Hari Mohan and Roy Mohan. Plaintiff respondent No. 1 is the son, of Roy Mohan and the appellants who are defendant Nos, 12 and 13 are the sons of Hari Mohan and the defendant No. 11 who was the wife of Hari Mohan, died during the pendency of the proceeding at the lower appellate stage, leaving the present appellants as her heirs.
4. The case of the plaintiff, in short, is that Hari Mohan and Roy Mohan while had been
living in joint mess, Hari Mohan the elder brother and the ‘Karta’ of the joint family and
his wife defendant No. 11 successfully influenced Roy Mohan to go to Burma in the year
1946, Hari Mohan had been earning lot of money by doing business and service in Burma
and contributed to increase the joint family fund to acquire the second category property. Roy Mohan once came back from Burma in the year 1953-54. He married then plaintiff’s mother and out of the wedlock the plaintiff and his two sisters were born in Burma. They were sent to this country in the year 1964. Hari Mohan accommodated them in their village home mother of the plaintiff committed suicide in the year 1967-1968 when the plaintiff and his sisters wren minors. However, they were brought up by Hair Mohan and his wife in their town residence and in the year 1977 the two sisters of the plaintiff were sent to their maternal uncle’s house and in the year 1979 the plaintiff himself was turned out from the town residence of his father. Thereafter Hari Mohan died on 25.02.1982.
5. Getting a letter dated 17.02.1982, the plaintiff for the first time came to learn that his
father was alive and from further communications with his father plaintiff could know that his father was sending money although to the appellants mother and subsequently from letter dated 03.06.1983 written by two friends of his father from Burma the plaintiff came to know that his father died on 28. 05. 1983. So he claimed his share in the properties of his father as his heir in his ancestral property and he also claims legitimate share in the property acquired by the joint source of family fund of his father and his paternal uncle in the second category of properties, although the same was held in the
names of Hari Mohan and his wife Malati prova chowdhury, the defendant No. 11 .the plaintiff claims V2 share in the suit properties. It is also stated by the plaintiff that when the appellants initiated a proceeding for succession certificate on the money of ‘Nio’ schedule of the plaint left by Hari Mohan, the plaintiff raised objection unsuccessfully and thereafter the present suit has been filed .
6. Malati Prava Chowdhury as defendant No. 11 (now deceased) and the appellants as defendants 12 and 13 contested the suit by filing two sets of written statements denying the material facts of the plaint and contending, in alia, commonly that the defendant No. 11 was the only issue of her father Anada Charan Sen Who was a big businessman at north patenga, in Chittagonj, At the time of her marriage with the father of the appellants she was given huge ornaments and chas money and after death of her fatter she inherited all movable and immovable properties of her father and she also got compensation for acquisition of some other paternal land and thus from her own source which she acquired from her father property, she had purchased many properties including the disputed ‘chaa’ schedule land that while plaintiff’s father decided to go to pilgrimage, by a registered deed of gift (Ext. Ga) being no 91 dated 24.12.1946 (registered on 07.01.1947) he gifted his entire ancestral properties in favour of the defendant No. 11 who got her name recorded in P. S and B. S. Khatians and since then she was in possession of the same,. It is also the case of the defendants that, Roy Mohan, While had been in Burma never informed his whereabouts to the defendants. Suddenly in the month of March, 1965 the mother of the plaintiff with her children came to the town residence of Hari Mohan. She was then given accommodation at his village home. Hari Mohan was an expert in photography business, he has established ‘Ja’ schedule properly, being Maya Puri studio in 1949 and purchased the land of town property out of the income of that studio in 1958 and out of the income of those properties he established Babul Studio renamed as biswarupa Photographers and after death of Hari Mohan the appellants were running studio business . The defendants denied that Roy Mohan ever sent any money to Hari Mohan or Defendant Nos. 11.3.13. It has been further alleged by the defendants that the plaintiff was educated up to Higher secondary certificate, by the financial assistance of Hari Mohan and that the property of schedule ‘cha’ to ‘Ta’ are completely self acquired and exclusive properties of Hari Mohan and his wife the defendant No. 11 who is the second wife of Hair Mohan ,After the death of the first wife. Plaintiff examined 3 P.Ws. P. W. 1 Mridul Chowdhury is the plaintiff himself . P. W. 2 Biswosar Das is a maternal uncle of the plaintiff. P. W. 3 Krishna Hari Chowdhury, is a neighbor of the parties.
7. Defendants examined 4 D. Ws. D. W. 1 Maloti Prova Chowdhury (defendant No. 11) D. W. 2 Shambhu Nondi is a neighbor. D. W. 3 Shambhu Chandra Sarkar is another neighbor and D. W. 4 is Chinmoy Chowdhury, defendant no. 12. The trial court while disposing of the suit observed, inter alia, as follows. “My positive view is that, the defendant No. 11 could not acquire any property for herself, whatever she acquired
as asserted was from the family fund and must be attributed in joint family in question .
The learned advocate for the defendant No. 11 has strenuously argued that Roy
Mohan’s death in Burma as averred is amyth. Be it so, even in worst view, it has no bearing in the case, because Roy Mohan has got a male heir, Moreover, there is no case that Roy Mohan died a civil death and the joint family was dissolved. The stay of. the plaintiff and defendants in the same mess leads us to presume that on the face of the rivalry and family feud the joint family was not dissolved and the plaintiff has recurring community of interest in the property in suit and is entitled to relief as prayed for.”
8. Against the judgment and decree of the trial court the defendant preferred the first
Appeal No. 213 of 1996 before the High Court h Division. The learned judges of the High Court division heard the parties upon the appeal and have been pleased to dismiss the appeal by the impugned judgment and decree. The High Court Division dismissed the appeal by the impugned judgment and decree. The High Court Division dismissed the appeal vis-a-vis the suit upon consideration of the evidence on record both oral and documentary on thread bear discussion of the same and upheld the judgment and decree of the trial court. The High Court division, inter alia, held that the nature of joint family was not broken, and all the ancestral property of Hari Mohan and Roy Mohan were not included in the deed of gift Ext ‘Ga’ by which transfer of the entire share of Roy Mohan in his ancestral property in favour of the defendant No. 11 is claimed. The High Court Divison observed, inter alia, as follows : “The donee married Hari Mohon after the death of his first wife in 1944. She was 17/18 at the time of marriage she took up the administration of her husband and Roy Mohon after 2/3 years of her marriage. But P. W. 1 the plaintiff Mridul Chowdhury , P. W. 2 Biswoswar Das, P. W. 3 Krishna Hari Chowdhury all in a chorus said that the two brothers lived in a joint family. Further more the D. W. 4, Chinmoy Chowdhury cousin of the plaintiff said that the plaintiff had equal share in the property…There fore, we find that there is other land left out of the gift deed and jointly held by both the brothers, so far as the deed of gift we have found that everything was done by Hari Mohan from purchasing the stamp up to registration D. W. 1 even did not know the witness of the gift. Malati Prova Chowdhury, D. W. 1 said that she performed the funeral ceremony of the plaintiff’s mother in the village home. D. W. 1 said that at the time of writing the deed, Ramani, Manindra deed writer Shyama Charan were present but none examined, we also do not find what prompted a young man of 21 years to give away all his earthly belongings, by the gift to a member of the same joint family. He married to live a family life with the plaintiff’s mother. Therefore we hold that the deed of gift was not made in accordance with law. The date of his death does not destroy the character of the joint family when the plaintiff with his mother and sisters lived in the family till the institution of the suit. Regarding the other property it is found that the photography studio, according to the son of D. W. 1 Malati prova chowdhury was established in 1948 when the family lived as joint family. The other lands that were alleged to have been purchased with the money of the defendant No. 1 had not been proved at all. The source of money was not unfolded beyond doubt before the trial court D.W.I said that she had no source of income she was completely depended upon her husband for her maintenance but she used to get money from her father. There is no evidence on record that her father had given her any money. There is no evidence on record that her father was a rich man, nor is there any thing to show that she received money from her father.”
9. Mr. T. H. Khan the learned consul appearing for the appellants submits that the
instant suit for partition Simplicities is not maintainable without a prayer for declaration
that the Ext. Ga is not a genuine document, we notice that both the courts below found that the suit for partition is maintainable, we endorse the view of he courts below and hold that in a suit for partition all the incidental questions of title, however complicated, it may be, can be thrown away or driven out on the ground of maintainability of the suit and as such the argument as to non-maintainability of the suit as advanced by Mr. Khan perishes without any footing.
10. In 49 DLR (AD) page 68 (paragraph 10) the appellate division as to maintainability
of the partition suit has held as follows:”In a suit for partition the Court will no doubt consider the title of the plaintiffs to the suit land in some details more than in a suit for permanent injunction..” In the Cases of Md. Sultan Mia and others vs. Hazera Bibi and others in 1948 BLD(AD) page 23 paragraph 8 it has been held as under : ‘”Admittedly the plaintiff is in possession of 3 karas of land in the homestead plot and, as such, she should not be driven to file a separate suit in order to prove that she had acquired any right or
interest in 3 karas of the land in the homestead plot. A question of title can incidentally be gone into in a partition suit.”
11. In the case of shashi Kumar Vs. Nagendra Nath 1982 BLD (HC) page 36 paragraph
8. It has been decided inter alia as follows: “In this regard the court has ample authority to determine issues to title independent of the partition, that are necessary for the purpose of allocating the respective shares. A suit for partition may involve disputed question of
title and any attempt to avoid deciding such issues would only lead to needless
multiplicity of suits, Further, a mere denial by a defendant as to the title of the plaintiff in any partition of the suit property in a partition suit would not convert a partition suit into a declaratory suit for title and a suit for possession, as the jurisdiction of civil court in case of a partition suit could not be placed at the mercy of every profligate defendant
to render the court a mere ministerial agent only to carry into effect the wishes of the parties in case where there were no matter of controversy between them, as sought to be urged by the learned lawyer for the appellant. Hence the contention that the instant partition suit was not maintainable without a declaratory suit for title, as it involved
disputed question of title, has no substance.”
12. In DLR 38 Sahimon Bewa Vs. Sabiruddin and others page 265 in paragraph 12. It has been held as follows:”In suits for partition, questions may and do frequently arise which interest only some of the parties. To take one illustration. There may be no dispute as to the extent of the share claimed by the plaintiff, while there may be a serious controversy as to the respective shares of the defendants interest. One of the defendants may allege, for instance, that he had acquired a particular share as the preferential heir to a deceased member of the family, this may raise an obscure question of fact or a difficult question of law. Or, again, a defendant may allege that he has acquired title to share either of the entire estate or of one or more of the properties comprised therein, under a deed executed by another member, this may conceivable involve an enquiry into questions of fact and law not easy to solve….if they contend that the properties belong to them personally, the matter must be investigated and decided”.
13. Mr. Khan also submits that the plaintiff was under onus to prove that the Ext. ‘Ga’ was not a genuine document and that Roy Mohan was not an illiterate person and he could read and write and that the letters Exts 1 series were written by himself and that Chittagong town property which is of the second category of the particle property in the suit were acquired by the joint and common source and fund and that Roy Mohan used to send money to establish and improve the joint family fund by which town properties were purchased including the two studios named above.
14. Our careful scrutiny of the ext. 1 series, letters from Roy Mohan written on different
times and dates, coupled with the oral deposition of P. W. 1. the plaintiff and his other 2 witnesses, have distinctly and sufficiently proved that Roy Mohan was not illiterate and he could read and write and that the ext. Ga is a forged deed as it bears the LTI of Roy Mohan as it’s executants and so also it has been proved that Roy Mohan who served in Burma and ran a shop there used to send money occasionally from Burma to Hari Mohanand his wife Malati Prove and in this respect the trial court and the High Court Division concurred both expressed and impliedly which are question of facts.
15. Mr. Khan has also argued that the plaintiff i£ always saddled with the burden of proof
to establish his own case to get the relief but here in the instant suit, according to Mr. Khan the plaintiff could not exhaust onus in proving his case and as such according to him the High Court Division in as much as the trial court fc, committed illegality in decreeing the suit of the plaintiff although he could not prove his claim. It is observed that in a civil litigation the onus of proof does not remain fixed as it is in criminal
proceeding. Onus of proof in a civil litigation is generally lies upon the plaintiff but some
time it is splitted up between the parties and some time it is shifted upon the defendants as well, according to the respective cases of the parties, as they plead, in view of the concept and the meaning of the provision of section 102, 103 and 104 of the Evidence Act. In the instant case the plaintiff could successfully carry out the onus of proof. Another very important element has been established by the plaintiffs witnesses that the family was a joint Hindu family, it was never broken and the property of second category was acquired by the income of the first category property and out of the income of the
property of Roy Mohan contained in the Ext. Ga and left out of it.
16. Privy Council in XXIX CWN (page 1037) in the case of Must. Bhagwani Kunwar
and another vs. Mohan Singh and others the principle as to joint family according to Hindu law as follows:”It is well established law that those who allege that the members of a joint Hindu Family had separated must prove unless it is admitted, that there was a separation at some material time. The presumption until the contrary is proved is that the family continues joint, and is insufficient to prove, contrary to the presumption of law, that the family to which the entries refer and separated.” In the book principles of Hindu law by D. F. Mulla 11th edition section 228 (2) reads as follows: “If the property so acquired is acquitted with the aid of joint family property, it become joint family property.” Section 233(1) of the same Edition of D. R. Mollah says as follows:
“Presumption that a joint family continues joint Generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, .worship and estate, in the absence of proof of division, such is the legal presumption (p) in other words, ‘given a joint Hindu family, the prec.imption is until the contrary is proved,
that the family continues joint’ (q). The presumption of union is the greatest in the case of father and sons (r). ‘The strength of the presumption necessarily varies in every case. The presumption is stronger in the case of brother than in the case of cousins..”
17. In case of K. V. Narayanaswami Iyer vs. K. V. Ramakrishna Iyer and others A. I. R
1965(SC) page 289 paragraph 15 as follows: The legal position is well settled that if
in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown, vide Amritalla vs. Surath Lai. AIR
1942 Cal 553 Appalaswami Vs. Suryanarayanamurthy, ILR (1948) Mad 440: (AIR 1947 PC 189).” 18. In the instant case the courts below believed concurrently upon the evidence brought by the P. Ws as to joint ness of the family and acquisition of the part of the disputed property by the joint income of the property of both the brothers. The evidence of the P.Ws could not be dislodged or scanned down by the long cross examination made on behalf of the defendants. R.S Khatian of the suit property also was prepared in the names of both the owners as stated by the P. W. 1 which also could not
be negatived. P.W. 3 Bisheshwar Das who is an officer of the Chittagong Textile Mills deposed supporting other P. W.s that Roy Mohan and Hari Mohan till their death, were in the joint family and Roy Mohan was a literate person and that Roy Mohan used to do a service in Burma and run a shop there and send money to his brother and his wife.
19. In the case of Mudigowda Gowdappa Sankh and others Vs. Ramchandra Revgowda
Sankh and another A. I. R. 1969 (SC) page 1076 paragraph 6 it has been observed as follows:” The burden of proving that any particular property is joint family property,
is, therefore, in the first instance upon the person who claims it as coparcener property. But if the possessing of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the 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 the possession of an adequate nucleus in 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.”
20. In the case of Jitendra Nath Mistry Vs. Abdul Malek Howlader and others 54
DLR(AD) 106 in paragraph 6 it has been found as follows:” The sum total of the averments of the plaintiff in the plaint was that there was total absence of legal necessity upon showing which transfers had been made and that the transactions two i.e.
transactions relating to property Nos. 1 and 3 of ‘Ka’ schedule, have been brought into existence by the unfair activities of Borodh Kanta Roy in order to grab the property left by Narayan Chandra.”
21. As we see the similar facts and circumstances are in this instant case and necessary
evidence are on record. 1955, SCR I page-7 reads as follows:”But where it is established that the family possessed some joint property which from its nature and relative value
may have formed the nucleus from which the 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 the joint family property”. In the case of Naraynaaswami vs. Ramakrishan AIR 1965 (SC)”289 para 15.17page-292 it is found as follows: (15) “The legal position is well settled that if in fact at the date of acquisition
of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property unless the contrary is shown.”
22. There is no allegation from the appellants of non consideration of evidence, wither
oral or documentary by the trial court or lower appellate court. Form the spirit of the decisions carted above, the evidence discussed and relied upon, both oral and documentary by the courts below and from the scrutiny of the findings and decisions
of the courts below, which are based on the evidence on record, show invariable with
cogent and legal reasons that the plaintiff has been able to prove his case as claimed in the plaint and the defendants have failed to disprove the same as has been concurrently found by the courts below. In the result this appeal has no merits, it fails and is dismissed without any order as to costs.
Source: I ADC (2004), 124