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TMI Blog2007 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... hinery installed in the ice factory for a consideration of ₹ 16,000/- out of which ₹ 5,000/- was paid as earnest money. These agreements are Ex.P-1 and Ex.P-2 on the record. As per the terms of the agreements, the sale deeds were to be executed on or before 10.8.1982. It was pleaded that the defendant defaulted on which a notice was served on him on 19.12.1983 but as no result was forthcoming, a suit for specific performance was filed on 17.1.1984. 2. The defendant contested the suit on several grounds, inter-alia, that the agreements as well as the receipts with respect to the earnest money had not been executed by him and that the land in question and the building raised thereupon and the ice factory were Joint Hindu Family property and he being one of four coparceners was not competent to sell his share which made the agreement Ex.P-1 unenforceable and that no decree for specific performance could be claimed with respect to the machinery which was moveable property and at best damages or compensation could be claimed for the breach of this agreement. On the pleadings of the parties, the Trial Court framed the following issues: 1. Whether the defendant executed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was no joint family lay on the plaintiff, and that he had been unable to discharge this onus. The Trial Court accordingly dismissed the suit on this finding. The unsuccessful plaintiff thereafter filed a first appeal which too was dismissed by the Addl. District Judge, Amritsar by judgment dated 26.5.1993. The matter was then taken up in second appeal by the plaintiff. The learned Single Judge in his judgment dated 27.11.2002 substantially reversed the findings of the Courts below and partly decreed the suit in the following terms: In view of the aforesaid discussion, the present appeal filed by the plaintiff is partly allowed. The suit for specific performance of the agreement Ex.P-1 regarding 1/4 share of the land measuring 29.2/3 marlas is hereby decreed on payment of the entire remaining sale consideration i.e. ₹ 5,000/- by the plaintiff. However, suit of the plaintiff regarding sale of 1/4 share by the defendant in the land measuring 11 marlas and the building constructed thereon, which is Joint Hindu Family property, is dismissed. The suit regarding specific performance of agreement Ex.P-2 pertaining to the sale of 1/8 share in the machinery installed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m alone without the slightest hint that it was Joint Hindu Family property, and it was after an amendment of the written statement that the plea that the property in question was Joint Hindu Family Property had, for the first time, been taken. It has also been pleaded that there was no evidence whatsoever to show that the aforesaid property had been purchased from the income of the Joint family so as to give it the character of a Joint Hindu Family property and that the onus which lay on the defendant as the propounder of the joint family, as envisaged by the judgment of this Court in D.S. Lakshmaiah and Anr. v. L. Balasubramanyam and Anr. AIR2003SC3800 had clearly not been discharged. It has, further, been argued that the finding of the High Court that a decree for 11 marlas of land could not be granted as this land had been purchased by Dula Singh during his life time and had passed on to his son by succession after his death in 1966 was therefore Joint Hindu Family in the hands of his sons too was wrong as observed in K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer and Ors. [1964]7SCR490 as there was no presumption in law that a property purchased in the name of a member of a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that he was ready to execute the sale deeds but Kulwant Singh, plaintiff had not appeared to do so. Likewise, in the original written statement a case of denial of the execution of the agreements had been pleaded and it was only by way of an amendment that the plea that the property belonged to the Joint Hindu Family had been raised. In this connection the judgment in D.S. Lakshmaiah case (supra ) becomes relevant. It had been observed that a property could not be presumed to be a Joint Hindu Family property merely because of the existence of a Joint Hindu Family and raised an ancillary question in the following terms: The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu Family property or self- acquired property of the first appellant. 7. The query was answered in paragraph 18 in the following terms: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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