Patna High Court
Arjun Mahto And Ors. vs Monda Mahatain And Ors. on 14 July, 1970
Equivalent citations: AIR1971PAT215, AIR 1971 PATNA 215
JUDGMENT Kanhaiyaji, J.
1. This is an appeal by defendants 1 to 6 from the decision of the court below decreeing the plaintiffs' suit for partition in respect of the lands of one mauza Berasi. The relationship between the parties is not disputed.
According to the genealogy given in Schedule I of the plaint, one Ritu Mahto, the common ancestor of the parties, had three sons, namely, Saharai, Jogu and Sonaram. Sridhar and Sudan were the sons of Saharai, while Gangadhar, the father of Jhabu Mahto (defendant No. 9), was the son of Jogu. Gurucharan, the husband of Shrimati Mahatani (plaintiff No. 4), and Bidyadhar Mahto the husband of Shrimati Adin Mahatani (plaintiff No. 7), were the sons of Sonaram, besides Nitai Chandra Mahto, plaintiff No. 1. Dasrath, defendant No. 1 (since deceased) and Chutu, defendant No. 2, were the sons of Sridhar.
2. The plaintiffs' case, in short, Is that originally the lands described in Schedule 2 of the plaint which are situated in five villages, namely, Haiturildih, Berasi, Heshalong, Dulmi and Shyam nagar, belonged to Ritu Mahto. After his death, his aforesaid three sons inherited them in equal shares. Consequently after the death of Saharai his l/3rd share in the properties was inherited by his two sons. Sridhar and Sudan. Therefore, the descendants of late Sridhar Mahto have got l/3rd share in the suit properties. Similarly, defendant No. 9, who is the grandson of late Jogu Mahto has got l/3rd share, and the remaining l/3rd share belongs to the plaintiffs, who are the descendants of Sonaram Mahto.
According to the plaintiffs, the lands in suit had never been partitioned by metes and bounds either amongst the three sons of late Ritu Mahto or amongst the descendants of the sons of Ritu Mahto, although the predecessors of the plaintiffs and the defendants cultivated some lands in suit separately for the sake of convenience. The plaintiffs' case further is that there was no deed of settlement in the name of Ritu Mahto with regard to the lands in suit. The landlords of mauzas Berasi, Dulmi and Heshalong compelled Soharai to get deeds of settlement executed in respect of the lands of those villages on payment of salami. As a result, the deeds of settlement in respect of the said lands were granted only in the name of Soharai, who was the Karta of the family. No deed of settlement could be executed with respect to the suit lands in Shyamnagar and Hiturildih.
It is alleged that Soharai, who looked after the settlement operations in 1911 on behalf of the entire family got the suit lands appertaining to khata Nos. 213 and 214 of village Berasi recorded in his name as well as in the names of his brothers, Jogu and Sonaram; but in respect of the lands in other four villages he got the same recorded in his own name. In paragraph 3 of the plaint, it is stated that Saharai Mahto was the eldest of the three sons of Ritu Mahto, and, so long as Saharai was alive, the rent receipts were granted in his name, and, after his death, in the name of his descendants who happened to be eldest. The three branches of co-sharers have been contributing equally towards the rent payable for the properties in suit.
3. Defendants 1, 2 and 3 only filed written statement and put in contest in the suit. Their main contentions therein were that the suit lands in mauza Berasi, which belonged to Ritu Mahto, were partitioned one or two years after the death of Ritu Mahto, which took place about eighty years back, amongst his three sons, namely, Saharai, Jagu and Soneram, and thereafter the aforesaid three sons came in possession of the lands allotted to them in the said partition. After the aforesaid partition, Saharai acquired the suit lands in villages Dulmi, Heshalong and Hitiruldih and Shyamnagar besides some lands in mouza Berasi at an annual rental of Rs. 3/1/6 including cess under a patta dated the 1st May, 1901. It is also stated in the written statement that plaintiff No. 1 has no locus standi to bring this suit as he has sold his entire right, title and interest in his paternal properties with Jhabu Mahato, defendant No. 9, and that the suit, as framed, is not maintainable in the present form.
4. The learned Subordinate Judge, after considering the rival contentions of the parties, has come to the findings that there was no previous partition amongst the sons of Ritu Mahto one or two years after his death with respect to the suit lands in mauza Berasi, and that the suit lands of the other four villages, Heshalong, Shyamnagar, Dulmi and Hitiruldih were the self-acquired properties of Saharai Mahto, there being nothing in the plaint to indicate that the same were acquired by him from the income of the suit lands in mauza Berasi which belonged to Ritu Mahto. In view of the above findings arrived at by the learned Subordinate Judge, the suit was decreed in respect of the lands in mauza Berasi and was dismissed with regard to the suit lands in mauzas Heshalong, Shyamnagar, Dulmi and Hitiruldih. There is no appeal in this Court by the plaintiffs against the dismissal of the suit with regard to the suit lands of the four villages mentioned above.
5. Mr. Mazumdar, learned counsel for the appellants, has urged that the decision of the trial court is erroneous. In the circumstances of this case, it should be presumed that there was a partition between the three sons of Ritu Mahto after his death. He argued that the parties are in separate possession of the lands for the last eighty years with separate residence and mess. There have been separate dealings and separate acquisitions of the properties by the parties after the death of Ritu Mahto. Therefore, on the facts of this case, it should be presumed that there was no joint family property for which a decree could be passed for partition. Mr. Mazumdar, however, admits that there are two plots, namely, plots 2246 and 2247, mentioned in paragraph 23 of the written statement, which are still joint and they may be partitioned.
6. In this case, admittedly, there is no formal document of partition. Still, the partition can be proved by the intention of the parties manifested by their subsequent conduct by their sole and independent enjoyment of the properties [see, Budha Mal v. Bhagwan Das, (1891) ILR 18 Cal 302 (PC)].
7. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. In the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transactions have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time.
This principle has been expounded by the Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi AIR 1962 SC 287. When no contemporaneous documents are available, the question whether the parties remained united or separate is to be decided on the facts of each case.
Relying on a decision in Mukhram Rai v. Chandradeep Rai, AIR 1936 Pat 68, Mr. Mazumdar strenuously argued that where parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time, the Court might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being repartitioned. Fazl Ali, J., as he then was, relying on a Privy Council decision in Yellappa Ramappa v. Tipanna, ILR 53 Bom 213 = (AIR 1929 PC 8) has observed:
"In the present case the parties have been in possession of and have been exercising rights of ownership over separate blocks of land for such a long time and in such a manner that a Court might well presume that these lands have been already divided and the rights of the parties defined in regard to them in such a manner as to preclude their being re-partitioned."
8. Separate possession and cultivation of the lands are admitted. P. W. 5 (plaintiff No. 1) has stated that the parties according to their convenience started cultivation of the suit lands separately after the death of Soharai and his two brothers. Soharai Mahto died in the year 1922 which is proved by D.W. 1, Dasrath Mahto. In the khatian which was prepared in the year 1911 separate possession of the lands by the three brothers is mentioned in the remarks column. Therefore, there is no difficulty in holding that the suit lands of mauza Berasi, left behind by Ritu Mahto, were in separate possession of the three brothers prior to 1911 when the survey records were prepared.
The learned Subordinate Judge haa also held that the parties began cultivating the plots having been shown in separate possession of each of them in the khatian for the sake of convenience. The fact that the parties were residing separately is proved by Ext. 2, the khatian of village Sirum. Plot No. 4724, which is Bashtughar, is shown in possession of Soharai, while plot No. 4722, which is the bari land, is shown in possession of Jagu Mahto.
Manbodh Pandey (D.W. 3) the priest of the family, has proved that the parties have separate cultivation, residence and mess. This witness is aged about 92 years. There is no material in the cross-examination of this witness contradicting his statement on the point stated above. On the other hand, there is no averment in the plaint or evidence adduced on behalf of the plaintiffs in court to show that the parties were still residing and messing together. Separate cultivation, as already stated, is admitted. The pattas, which have been marked as Exts. Ka/2 and Ka/3, are dated the 10th June, 1886, and 15th March. 1893, respectively. They as well as Exts. Ga series, the khatians of khata No. 96 of mauza Heshalong of khata No. 20 of mauza Shyamnagar and of khata No. 14 of village Dulmi prove separate acquisitions by Soharai Mahto alone. These acquisitions have been upheld by the learned Subordinate Judge against which there is no appeal.
9. The defendants have filed two deeds in support of their case of separate dealings and exercise of ownership over the lands recorded in possession of the different parties in the survey khatian. Ext. Ka is a certified copy of the registered sale deed dated the 30th April, 1952, executed by Bistu Mahto (plaintiff No. 5) and Doman Mahto (plaintiff No. 6), minor sons of Bidyadhar Mahto, brother of Nitai Chandra Mahto (plaintiff No. 1), in favour of one Ram Mahto. This sale deed is in respect of sale of lands appertaining to the share of the executants described in the schedule of the properties. The lands transferred by the sale deed are of khata No. 214 recorded in the name of Sonaram Mahto, namely plots 2363, 2365, 4382. 4389, 4399, 4566 and 4569. The minor executants were represented by their mother Srimati Adhin Mahatani, the widow of late Bidyadhar Mahato.
Ext. Ka/1 further goes to reveal that Nitai Mahto (plaintiff No. 1) sold to Jhabu Mahto (defendant No. 9), son of late Gangadhar Mahto, 1 acre and 11 decimals of land of plots 4382, 4389, 2351, 2360, 2353, the kasht lands recorded in the name of Sonaram Mahto, 4 kathas being his share out of plot No. 2246 measuring 1 bigha 3 kathas and 4 kathas of house plot No. 4726 being in the middle portion, out of 11 kathas 8 dhurs comprised in this plot, recorded in possession of Sonaram Mahto. This shows that the three sons of Sonaram, that is, Gurucharan, Bidyadhar and Nitai (plaintiff No. 1) were also in possession of the house separately.
Ext. Ka (i) further goes to reveal that therein Nitai made statements to Indicate that oral partition was effected between Sonaram and his brothers in respect of the suit lands in mauza Berasi The relevant portion runs thus:
"My father had been in possession of his own share in the said lands by paying the rent and cess of the said lands jointly with his co-sharers and by getting the same partitioned privately and orally and on his death, I having inherited the properties left by my father, have been in possession of the same."
Therefore, on the strength of Exts. Ka and Ka (i) read with Exts. 2 and 2 (ka), it was very strongly argued by Mr. Mazumdar that Soharai, Jogu and Sonaram Mahto had partitioned the properties and their descendants occupied distinct plots of the suit land in mauza Berasi for a long period and that they or their descendants exercised the rights of ownership in respect of the lands in their separate possession. I feel there is much force in this contention and it has to be accepted.
The learned Subordinate Judge In view of Ext. 1, the kabuliat dated the 4th February, 1902 executed by Soharai and the entries made in the tenants' column of Exts. 2 and 2 (ka) which relate to khata Nos. 213 and 214 held that the two sale deeds could be executed only in view of separate possession recorded in respect of the plots mentioned in Exts. 2 and 2 (ka), there being no evidence whatsoever to prove the actual partition by metes and bounds in respect of the lands belonging to Ritu Mahto of mauza Berasi. In my opinion, the learned Subordinate Judge has not carefully examined the two sale deeds (Exts. Ka and Ka/1).
Ext. Ka (i) is a sale deed executed by Nitai Mahto (plaintiff No. 1) in favour of Jhabu Mahto (defendant No. 9) containing the statement that his father got the lands on partition privately and orally, and, on his death he had inherited the properties left by his father. These two factors lead to the inference that the lands had been partitioned during the lifetime of Sonaram Mahto after the death of Ritu Mahto.
Mr. Mitra urged that the admission of Nitai Mahto in Ext. Ka (i) is not admissible in evidence, because the procedure prescribed in Section 145 of the Evidence Act was not followed. The relevant portion of Section 145 of the Evidence Act runs as follows:
"..... if it is intended to contradict him (witness) by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The object of the section is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the broad point of ambiguity or dispute; but this procedure is not followed in regard to the admission in view of Ss. 17 and 21 of the Evidence Act. Admissions are substantive evidence by themselves, though they are not conclusive proof of the matters admitted.
In Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405, it has been held that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is quite different from the purpose of proving the admission.
Mr. Mitra relied on some decisions of the Calcutta High Court in support of his argument; but those decisions have no bearing on the instant case in view of the clear pronouncement of the Supreme Court in the above case.
Nitai Mahto (P.W. 5) has admitted in his evidence that he had sold some suit lands to Jhabu Mahto (defendant No. 5), and plaintiffs 5 and 6 had also sold some suit lands to Ramu Mahto, and he had witnessed the sale deed. In my opinion, the admission of Nitai Mahto (plaintiff No. 1). which has been duly proved, can be used against him, and much weight in the circumstances of this case is to be given. There is no denial by the plaintiffs of the facts admitted On the basis of the sale deeds (Exts. Ka and Ka (i)), it can be safely said that the descendants of Ritu Mahto had partitioned the lands of mauza Berasi, left behind by Ritu Mahto, and exercised ownership over them.
10. The learned Subordinate Judge has given much importance to Ext. 1, the registered kabuliyat dated the 4th February, 1902, executed by Saharai Mahto in favour of the mortgagee-landlord of mauza Berasi. It goes to reveal that therein Saharai had undertaken to pay rental of the lands mentioned in kabuliyat. There is no evidence on the record to connect the lands of the kabuliyat with the suit lands except the rental. It has not been stated by the plaintiffs' witnesses that the lands for which Saharai Mahto executed the kabuliyat were the same lands of mauza Berasi which had been acquired by Ritu Mahto.
Dasrath Mahto (D.W. 1) stated in his cross-examination that he had heard that Saharai Mahto had executed the kabuliyat for the lands of mauza Berasi, but the circumstances under which the kabuliyat had been executed have not been revealed either by the plaintiffs' witnesses or the defendants' witnesses. Therefore it is not safe to rely on the kabuliyat (Ext. 1).
Mr. Mitra strongly urged that when the three sons of Ritu Mahto, Saharai, Jogu and Sonaram were jointly recorded in the tenant's column of the khatians of Berasi mauza (Exts. 2 and 2/ka), it must be held that there had been no partition amongst them. The plaintiffs' case made out in the plaint is that at the time of survey settlement operation Sonaram Mahto, the father of plaintiff No. 1 lived in his father-in-law's house in mauza Oria Tola Nimtarn. He entrusted his properties to be looked after by his elder brother late Saharai Mahto, and Saharai Mahto got the record of rights prepared.
But this case was given a go-by at the argument stage. Mr. Mitra argued that the three sons of Ritu Mahto were present at the time of settlement operation, and the names of three brothers were recorded in the tenant's column of the khatians, to which nobody objected. It appears that till the date of the survey settlement operation, khata Nos. 213 and 214 had not been separated. Therefore, although the names of three brothers find place in the tenant's column still the plots were shown in separate possession of the three brothers. The entry in the tenant's column is not incompatible with the theory of partition between the sons of Ritu Mahto before the survey settlement operations.
11. The cose of the plaintiffs is that the rent of the different properties in suit is still being paid jointly. Saharai was the eldest of the three sons of late Ritu Mahto; and, so long as Saharai was alive, receipts were being granted in his name, and, after his death, in the name of his descendants who happened to be the eldest. The three branches of the co-sharers are contributing equally towards the rent payable for the properties in suit. Defendant No. 1 has stated that his father Saharai died in 1329 B. S., which would correspond to 1922 A.D. Thereafter, it appears that Nitai Mahto, plaintiff No. 1, was the eldest member of the three branches of the descendants of Ritu Mahto, In case, the rent was being jointly paid, still no rent receipt was produced by the plaintiffs, and plaintiff No. 1 as P.W. 5 has frankly admitted in court that he has no receipts showing payment of rent for the suit lands. The defendants have, however, produced some receipts. Out of them, three receipts are for some lands of mauza Berasi.
12. Mr. Mitra next argued that the Court must presume that there was no partition amongst the three sons of Ritu Mahto, because a major portion of the lands was in possession of Saharai Mahto. Unequal division of the joint properties, according to Mr. Mitra, leads to an inference that there had been no partition of the properties, rather the co-sharers were in separate possession for the sake of convenience of cultivation. In paragraph 6 of the plaint it is stated that the plaintiffs are in separate possession of less area of lands in proportion to their share, whereas the defendants are in possession of much more lands than their due share. Plaintiff No. 1 has also stated the same thing in his evidence. This position is admitted by D.Ws. 1 and 4.
It appears that about 60 to 70 bighas of the suit lands in mauza Berasi are in cultivating possession of the contesting defendants, while the rest is in possession of the plaintiffs and defendant No. 9. In this connection, it is to be remembered that after the death of Ritu Mahto, Saharai Mahto also acquired some properties in mouza Berasi by a patta dated the 1st May, 1901, the rental whereof is Rs. 3/1/6 including cess. The plaintiffs have not given evidence to show that the inequality in the division of lands between the ancestors of the plaintiffs and the defendants was such which may be taken to be shocking to the conscience.
The principle of Hindu law is equality of division, but unequality of division in acreage of the lands does not invariably lead to the conclusion that there was unequal division of the lands at the time of their partition. The case of Siromani v. Hemkumar, 1968 BLJR 969 = (AIR 1968 SC 1299) is an authority for . the proposition that the document of jethansi or jeshtbhagam is now obsolete. For the sake of argument, even if I accept that there was an unequal division of the landed properties of mauza Berasi, still to my mind there is no explanation by the plaintiffs as to why it was not objected to by Sonaram, who, according to Mr. Mitra, was present at the time of survey settlement operations. The two sons of Ritu Mahto, Jogu Mahto and Sonaram Mahto, and their descendants could not have occupied lesser area of lands in mauza Berasi for the last eighty years, had there been no partition as alleged by the defendants.
13. Separation in food and residence for a long tune among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties, are by themselves not conclusive to prove the partition but the cumulative effect of such facts may show that there had been partition between the brothers during their lifetime. In this connection it is profitable to refer to the decision of the Privy Council in Gangabai v. Fakirgowda Somayyagowda, AIR 1930 PC 93.
14. The learned Subordinate Judge has observed that D.W. 3 Manbodh Pandey, aged 92 years, surprisingly did not say anything to show that the said partition was effected in his presence. D.W. 3 has himself admitted that he knew nothing what happened in the family of Saharai Mahto 20 or 30 years before. Therefore, it is not expected that this witness would have said anything about the partition. The rest of the oral evidence of the parties is not important as to attract any special attention.
15. The learned Subordinate Judge has also drawn adverse inference against the defendants, for according to him, there was no case of the contesting defendants that the lands of two plots were left joint at the time of the previous partition alleged by them. I have already stated that in Ext. 2 (ka), two plots, namely, plots 2246 and 2247 of khata No. 214, were shown in the remarks column in joint possession of Soharai. Jagu and Sonaram. The first plot No. 2246 is a pond, and the second plot No. 2247 is its pind. It is common experience that such properties are left joint at the time of partition for the beneficial use of all the co-sharers. In this case, I find that in paragraph 23 of the written statement the contesting defendants have stated that at the time of the aforesaid partition amongst the three brothers only a tank and its embankment were kept joint, appertaining to khata No. 214, which was recorded to be in joint possession of the three sons of Ritu. This shows that the learned Subordinate Judge has not carefully appreciated the case of the contesting defendants.
16. For the reasons stated above, the decree of the learned Subordinate Judge for partition of the lands in mauza Berasi, except two plots, that is, plots 2246 and 2247 of khata No. 214, has to be set aside. The appeal is accordingly, allowed in part, as indicated above, and it is ordered that the suit be decreed, only to this extent that the plaintiffs' l/3rd share will be partitioned in the lands of plots 2246 and 2247 of khata No. 214 of mauza Berasi, on contest against the contesting defendants and ex parte against the rest. The parties will bear their own costs throughout.
Bahadur, J.
17. I agree.