ORDER
1. This is a defendants' petition for revision of the order of the Court of Shri B. R. Gupta, Subordinate Judge 1st Class, Hissar, dated Nov. 18, 1974, reframing issue No. 4 so as to shift the burden of the issue from the plaintiff to the defendants and splitting up original issue No. 5 into issues No. 5--A and 5--B in order to retain the burden of issue No. 5--B in respect of some of the properties on the plaintiff (Properties mentioned in issue No. 5--B) and to shift the burden in respect of the other properties to the defendants which are covered by issue No. 5--A.
2. The suit for partition was filed by Dharam Kishore against his real brothers Nawal Kishore, Kaushal, Kishore, Hari Kishore and Prem Kishore. All the above said five brothers are the sons of Tansukh Rai. They also have four sisters (four daughters of Tansukh Rai) who have been impleaded as pro forma defendants to the suit but are said to be not claiming any interest to the property of their deceased father. The defendants having denied the existence of a Joint Hindu family and having also denied that the properties sought to be partitioned belonged to a Joint Hindu family, issues Nos. 4 and 5 originally framed by the trial Court on September 3, 1974, were in the following words:--
'4. Whether the plaintiff and B. Tansukh Rai deceased along with his sons except Nawal Kishore were members of the Joint Family at the time of death of B. Tansukh Rai deceased? OPP.
5. Whether the properties mentioned in Schedules B, C, D and E and half share in Schedule 'A' constitute Joint Hindu Family property between the plaintiff and the other sons of B. Tansukh Rai deceased except Nawal Kishore? OPP.'
During the course of trial of the suit, various applications were made by the plaintiff for production and admission or denial of documents etc. On October 1, 1974, the plaintiff made an application for amending issue 4 to 9 so as to shift the burden thereof from the plaintiff to the defendants. That application was disposed of by the order of the trial Court dated Nov. 18, 1974. By that order the burden of issue No. 4 was shifted on to the defendants by adding the word 'not' before the words 'members of Joint Hindu Family' etc. Issue No. 5 was split up into the following two issues:--
'5--A Whether half of the share mentioned in schedule A properties mentioned at (i) to (v) in schedule B and mentioned at (i) in schedule C do not constitute Joint Hindu family property between the plaintiff and other sons of Babu Tansukh Rai deceased, except Nawal Kishore? OPD.
5--B. Whether the properties mentioned in schedule B except the one mentioned above, schedule C except the one mentioned above, schedule D and schedule E constitute Joint Hindu Family property between the plaintiff and other sons of Babu Tansukh Rai deceased, except Nawal Kishore? OPP.'
Changes were also made in issues 8 to 10. In this petition for revision of that order, the recasting of issues Nos. 4 and 5 alone has been questioned. Mr. Ashok Bhan, learned counsel for the petitioners, has expressly stated that he has no grievance with regard to any other part of the order.
3. Actual date notice of the revision petition was issued to all the respondents. Service has been effected on respondents 1, 2, 3 and 5. Respondent No. 4 Santosh Kumari, daughter of Anand Prakash Aggarwal, has not been served. Counsel for both the sides have expressly stated that it is not necessary to serve her as she is merely a pro forma respondent It is, however, placed on record that this order is ex parte against her.
4. All that the learned Subordinate Judge has stated in support of his order under revision is this:--
'There is presumption of jointness among the members of a Hindu family and unless partition is alleged, that presumption subsists in favour of such a family. From the written statement of the defendants it is not borne out that the property was ever joint or that any partition ever took place among the parties. After giving a careful consideration to the points in issue, I feel that issues Nos. 4, 5, 8, 9 and 10 require modifications and 1 accordingly proceed to do the same.'
After noticing the fact that the defendants have not admitted in their written statement that the property in suit was ever joint or any partition took place among the parties, no reference at all has been made either to the statement of the counsel for the defendants made before the trial Court on Sept. 13, 1974, or to the document relating to the alleged partial partition of some of the properties on account of which the burden of the two issues in question was shifted by the trial Court to the defendants. Prima facie the order shifting the burden of the two basic issues not being supported by any reason, the revision petition was admitted by Sharma, J. on Jan. 6, 1975, and further proceedings in the trial Court were stayed. This revision has to be decide under the unamended Civil P. C.(as it was admitted prior to the amendment of the Code) as laid down in clause (c) of sub--section (2) of S. 97 of the Civil P. C. (Amendment Act) 1976. I have mentioned this fact as I am extremely doubtful if an order under Rule 5 of Order 14 of the Civil P. C. recasting an issue with or without changing the burden thereof, can at all fall within any of the two clauses of the proviso to sub--section (1) of S. 115 of the amended Code, except indeed in a very rare case.
5. Shri Ashok Bhan, learned counsel for the defendant--petitioners, has relied on the judgment of R. S. Sarkaria, J.(now an Hon'ble Judge of the Supreme Court of India) in Mst. Chand Kaur v. Mst. Jiwi, 1968 Cur. L. J. 554, wherein it has been held that error of procedure committed by the trial Court in wrongly casting the burden of proof on the defendants in respect of a particular issue, can be a palpable or a gross error, which would materially affect the ultimate decision of the Court on the issue in question and would, therefore, be revisable under S. 115 of the Code (prior to its amendment in 1976). Sitting in Single Bench. I am not in a position to differ with that view.
6. Unfortunately the trial Court has not adverted to the facts and circumstances justifying the recasting of the issues so soon after they were originally framed. One way of dealing with the matter would have been to set aside the order under revision on that short ground and to ask the trial Court to re--hear the parties and pass a proper order on the application of the plaintiff. I, however, think that there is force in the argument of Mr. B. S. Gupta, learned counsel for the plaintiff--respondent, that if he can show without much effort that the record of the order under revision fully justified the course adopted by the learned subordinate Judge, it would not serve any useful purpose to ask the trial Court to re--hear the parties and re--decide the application as the suit has already become quite old and a good deal of time and money of the parties would be wasted in adopting the suggested course. I have, therefore, heard the counsel for the parties at length on the merit of the application of the plaintiff.
7. After the original issues were framed on Sept, 3, 1974, the learned counsel for the defendants made the following statement on Sept. 13 in that year:--
'I admit the execution of writing dated 12-7-69 and 31-1-72 on behalf of defendant No. 3. It bears the signatures of defendant No. 3, plaintiff and another (other?) defendants Writing dated 31-1-72 is signed by the plaintiff.'
The writing dated July 12, 1969, is an agreement inter se between the sons of Tansukh Rai (other than Nawal Kishore) wherein they have mentioned about the existence of joint properties of the joint family and have agree to create a pool of some of them, divided it according to their respective shares and entrusted the management of those properties to one of them. It is in the light of this document and the statement of the counsel for the defendants and the pleadings of the parties to which pointed attention of the Court was drawn in the application of the plaintiff that the order under revision was passed. In para 1 of the plaint, the pedigree of the family of the parties has been given showing that out of the two sons of Shankar Dass, namely Parmeshari Dass and Ram Narayan Dass, the former adopted the latter's eldest son; Tansukh Rai and Tansukh Rai left behind him five sons and four daughters, out of which Nawal Kishore, defendant No. 8, was adopted by Tansukh Rai's brother Daya Kishan and the other sons and daughters are parties to the suit. The correctness of all the statements made in paragraph 1 of the plaint has been expressly admitted in the corresponding paragraph of the written statement of the contesting defendants. In para 2(a) of the plaint, it has been pleaded that Tansukh Rai and the plaintiff and the contesting defendant (the three other sons of Tansukh Rai except the one who was adopted away out of the family) were coparceners and constituted a joint and undivided Hindu Family. In para 2(b) of the plaint, it has been averred that the properties mentioned in schedules B, C, D and E and half of the property mentioned in schedule A constituted their coparcenary and joint properties. In reply to those averments, the defendants stated in para 2 of their written statement that the allegations of the plaintiff were wrong and false and that Tansukh Rai together with defendants 1, 2, 3 and the plaintiff never constituted a joint and undivided Hindu Family and that no properties (referred to in schedules A to E) ever constituted the coparcenary properties of any coparcener.
8. In paragraph 3 of the plaintiff's application dated October 1, 1974, the suggested issues arising out of the pleadings of the parties read with the document (alleged family arrangement) dated July 12, 1969, were enumerated.
9. Mr. Ashok Bhan, learned counsel for the petitioners, has argued that there is no presumption in law that any property of a family is joint and, therefore, the burden of issue No. 4 should not have been placed on the defendants. The learned counsel appears to be mixing up the question of the status of the family with the nature of the property belonging to the family or its individual members. Issue No. 4 only deals with the status of the family. The question to be decided under that issue is whether the plaintiff and his brother (except Nawal Kishore) did or did not constitute a Joint Hindu Family along with their late father Babu Tansukh Rai at the time of his (father's) death. This issue has nothing to do with any property. The relationship between the parties is admitted on all sides. That they are Hindus, is not in dispute. The question then arises, whether there is or is not in law a presumption of a Joint Hindu Family between a father and his sons, howsoever weak the presumption may be on the given facts of case. I agree with Mr. B. S. Gupta, learned counsel for the plaintiff--respondent, that in the light of the observations made by their Lordships of the Supreme Court in para 15 of their judgment in Indranarayan v. Roop Narayan, A. I. R. 1971 S. C. 1962, the presumption in such cases is in favour of the existence of a Joint Hindu Family. Of course, the presumption is rebuttable. Their Lordships have observed as below (at p. 1967):--
'It is true that for the existence of a joint family the family need possess no property. The chord that knits the members of the family together is not property but the relationship............................ The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it, satisfactorily.'
In view of the pleadings of the parties and admissions of the defendants referred to above in the light of the authoritative pronouncement of their Lordships of the Supreme Court, I have no doubt that issue No. 4 has been correctly recast by the trial Court and that there being a legal presumption in favour of the existence of a Joint Hindu Family between Tansukh Rai and his sons (except Nawal Kishore), it is for the contesting defendants, who deny its existence, to rebut the legal presumption. Issue No. 4 has, therefore, been correctly recast.
10. As already stated, there is no quarrel by either side with the frame of issue No. 5--B. The petitioners want the onus probandi of issue No. 5--A to be shifted back to the plaintiff.
11. The existence of Joint Hindu Family is stated to have been at least impliedly admitted by the contesting defendants in the document dated July 12, 1969. The burden of proving those properties to be not joint, which are shown by the said admitted document to have been divided by a family arrangement, should certainly be on the defendants. The only ground on which the learned counsel for the petitioners has pressed for shifting back the burden of issue No. 5--A to the plaintiff is that the properties in question do not stand in the name of the deceased or in the name of the Joint Hindu Family but stand in the name of the individual defendants. That by itself does not, in my opinion, conclusively rebut the presumption which arises on the facts of the instant case. A Joint Hindu Family property does not case to be joint merely because a part of it stands in the names of different members of the family.
12. Mr. Ashok Bhan, learned counsel for the petitioners, has lastly contended that there was no nucleus around which and Joint Hindu family property can be said to exist. These matters relate to the merits of the controversy and have to be decided at the trial of the suit.
13. Nothing said by me in this order shall be deemed to be an expression of opinion one way or the other on the merits of any of the issues between the parties. At the same time, from whatever angle I may look into the matter, I do not think it a fit case for interference by this Court in exercise of its revisional jurisdiction.
14. For the foregoing reasons, I decline to interfere with the order of the trial Court and dismiss this petition though without any order as to costs.
15. The trial Court record should be returned to it immediately. The parties have been directed to appear in the trial Court on November 3, 1977.
16. Petition dismissed.