Supreme Court Upholds Joint Family Property Status in Land Acquisition Compensation Dispute. Order II Rule 2 CPC Not Applicable to Property Purchased After Prior Partition Suit; Concurrent Findings that Property was Joint Family Property Affirmed.

Dispute over apportionment of compensation for land acquired under the Land Acquisition Act, referred to court under Section 30.

Appellant sought reversal of High Court judgment, claiming the property was self-acquired and respondents not entitled to share; respondents claimed the property was joint family property and sought a share in the compensation.

After the Land Acquisition Collector passed an award in favour of the appellant, the respondents appeared and claimed a share as co-owners of joint family property, leading to a reference under Section 30 of the Land Acquisition Act.

Additional District Judge in Miscellaneous Judicial Case No. 9 of 1973 held the property was joint family property and awarded a 1/3 share each to appellant and respondents. High Court in First Appeal No. 59/1977 affirmed the decision and dismissed the appeal.

Whether non-inclusion of the disputed property in the earlier partition suit bars the present proceedings by application of Order II Rule 2 CPC. Whether the findings of the two courts below that the property is joint family property can be interfered with by the Supreme Court.

Appellant argued that the sale deed was executed in 1961 but the property was in possession of Chhogalal since 1951, and even though respondents knew about it, it was not included in the 1953 partition suit, so Order II Rule 2 CPC must apply. Alternatively, by 1966 respondents knew about the property while appeal in Civil Suit No. 51/53 was pending, yet they did not seek inclusion, so the present claim is an afterthought. Appellant also contested the finding that property was joint family property, asserting consideration was paid by maternal grandfather. Respondents contended that two courts below had examined materials correctly and recorded concurrent findings that property was joint family property, so no question of law arises. They argued that the earlier partition suit was filed in 1953, before the property was purchased, so non-inclusion could not be fatal.

In a reference under Section 30 of the Land Acquisition Act, the court can determine whether the acquired property was joint family or self-acquired property. Order II Rule 2 CPC does not bar a claim for property that was not in existence or not owned at the time of the previous suit. Under Hindu law, if a family possessed joint property which formed a sufficient nucleus, there is a presumption that property acquired later is also joint, and the burden shifts to the party claiming self-acquisition to prove acquisition without the aid of joint family funds. Concurrent findings of fact by lower courts on jointness should not be interfered with unless perverse.

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. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. The provisions of Order II Rule 2 C.P.C. cannot be applied to the facts and circumstances of the present case. That the property having been acquired and an award has been passed, any claim in respect of the said compensation amount can only be made by raising a dispute before the land acquisition authority and that has been done in the present case.

In 1951, an agreement to sale was made and part consideration paid. In 1953, Ramchandra filed a partition suit (Civil Suit No. 51/53). In 1961, a registered sale deed was executed in favour of the appellant by Chhogalal as guardian. On 5 March 1966, the Land Acquisition Collector passed an award under Section 11 of the Land Acquisition Act granting compensation to the appellant. The respondents then claimed a share, and the Collector referred the dispute under Section 30 to the Additional District Judge. The Additional District Judge in Miscellaneous Judicial Case No. 9 of 1973 held the property was joint family property and awarded equal shares. The appellant appealed to the High Court in First Appeal No. 59/1977, which affirmed the lower court. The appellant then appealed to the Supreme Court, which dismissed the appeal on 2 February 1996.

• Land Acquisition Act, 1894: Section 11, Section 30
• Code of Civil Procedure, 1908: Order II Rule 2