Property not joint family asset sans family funds proof: Cal HC

Kolkata: The Calcutta High Court has held that property cannot automatically be treated as joint family property merely because the parties belong to a joint Hindu family.

The court said the person seeking partition must prove that the property was acquired from joint family funds. A division bench of Justice Rajasekhar Mantha and Justice Rai Chattopadhyay made the observation while allowing an appeal in a family property dispute from Purulia and setting aside a trial court’s preliminary decree passed in 1994.

The dispute concerns properties linked to one Dhanu Gope, the common ancestor of the parties. His descendants filed a partition suit in 1990 seeking division of land recorded under CS Khatian No. 21 and CS Khatian No. 23 in Purulia district.

The plaintiffs claimed both properties formed part of the joint family estate and sought partition among the heirs. The defendants argued that about 5.24 acres under CS Khatian No. 21 was the self-acquired property of Bholu Gope, one of Dhanu Gope’s sons, and therefore could not be included in the partition.

The dispute traces back to an earlier partition suit filed in 1926 by the previous generation of the family. That suit ended in a compromise decree in 1929 dividing properties under CS Khatian No. 23. The land under CS Khatian No. 21 was not included in that case.

A trial court in Purulia had passed a preliminary decree allowing partition of both properties, holding that they originally belonged to Dhanu Gope. The High Court found that the plaintiffs failed to prove that the land under CS Khatian No. 21 was purchased from joint family funds. It also held that the trial court wrongly shifted the burden onto the defendants to prove that the property was self-acquired.

The bench also noted that the property under CS Khatian No. 21 was not included in the 1926 partition suit. Since the predecessors had sought partition only of CS Khatian No. 23, their descendants could not later claim that the excluded land was joint property without proper pleadings and evidence.

The court therefore set aside the trial court’s decree to the extent it included CS Khatian No. 21. However, it said the suit could continue regarding unpartitioned portions of CS Khatian No. 23, including Bakshi Bandh Tarn and Telai Tarn.

The trial court will determine the present successors and their shares after allowing further evidence.