Patna High Court
Chhatu Pradhan vs Kailash Pradhan And Ors. on 20 December, 1990
Equivalent citations: 1991(1)BLJR711
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This First appeal arises out of a judgment and decree dated 10th December, 1983 passed by Sri Ibrar Hassan, Subordinate Judge, Chaibasa in Title Suit No. 30 of 1981 whereby and where under the said learned court dismissed the plaintiff-appellant's suit. The aforementioned suit was filed by the plaintiff-appellant for a decree for partition claiming 1/3rd share in the properties described in schedule 'B' of the plaint and 1/6th share in the properties described in schedule 'C' of the plaint.
2. The plaintiff filed the aforementioned suit alleging inter alia therein as follows:
One Jagmohan Pradhan was the common ancestor of the parties. He died leaving behind four sons namely Rajendra Pradhan, Prahlad Pradhan, Yudhisthir Pradhan and Kuber Pradhan. Yudhisthir Pradhan and Kuber Pradhan died issueless. Rajendra Pradhan had two wives namely Jambo and Rohini. Through his first wife he got two sons namely Kailash Pradhan and Purushottom Pradhan and through his second wife he got one son Chhutu Pradhan who is the plaintiff. Purusottom Pradhan allegedly died twenty years ago leaving behind two sons namely Makaradhwaj Pradhan and Chitradhwaj Pradhan who are defendant Nos. 2 and 3. Prahlad Pradhan also died leaving behind two sons namely Kashinath Pradhan and Brinda Pradhan. Kashinath Pradhan died about 12-13 years back leaving behind two sons namely Bishwanath Pradhan and Udayanath Pradhan (defendant No. 5), Bishwanath Pradhan died leaving behind his only daughter Arto Kumari (defendant No. 6).
3. Genealogical table of the parties in respect whereof there is no dispute, has been given in schedule 'A' of the plaint.
4 Admittedly the properties described in schedule 'B' of the plaint were recorded in the name of Rajendra Pradhan in the cadestral survey settlement record of rights. Allegedly after survey settlement operations, the aforementioned two recorded tenants partitioned their properties and began to possess the lands allotted to their shares separately. Admittedly, the properties described in schedule 'B' of the plaint were allotted to the share of Rajendra Pradhan.
5. However according to the plaintiff the properties described in schedule 'C' of the plaint were kept joint as it was a tank and arh. The plaintiff in the aforementioned circumstances prayed for decree for partition in respect of his 1/3rd share is respect of the properties described in schedule 'B' of the plaint and 1/6th share in respect of the properties described in schedule 'C' of the plaint.
6. It is further the case of the plaintiff that the parties have been possessing the lands described in schedule 'B' of the plaint separately for sake of convenience.
7. According to the plaintiff the defendant No. 1 taking undue advantage of his being the eldest son and as he has been looking after the affairs of the family got a larger area of the lands recorded in his separate possession.
8. The defendant Nos. 1 to 6, 8, 9, and 11 to 13 had contested the suit whereas defendants Nos. 7 and 10 did not appear in the suit.
9. Defendant No. 11 to 3 jointly filed their written statement wherein it was inter alia contended the defendant No. 6 is the minor and lives under the care and guardianship of her mother Satyabhama Debi and until she is properly represented, the suit cannot proceed. According to the said defendants Rajendra Pradhan died in the year 1940 whereas Purusottom Pradhan died in the year 1950 leaving behind his widow Priya Debi Kashinath Pradhan died leaving behind his widow, two sons and four daughters' and Bishwanath Pradhan died leaving behind his widow Satyabhama.
10. It is the case of the defendants that one year after the death of Purusottom Pradhan the lands of Rajendra Pradhan were divided in three parts amongst plaintiff, defendant No. 1 and defendant Nos. 2 and 3 and their separate possession in respect thereof have been noted in the remarks column of the record of rights which was finally published in the year 1961.
11. It has further been alleged that the defendant No. 1 filed as application for mutating his name separately in the office of Anchal Padhadhikari which was marked as Mutation Case No. 163/64-65 but the said application was rejected on ground that he could not produce a registered deed of partition, The defendant No. 1 thereafter preferred an appeal against the aforementioned order before the Land Reforms Deputy Collector which was marked as Mutation Appeal No. 1/66 and in the said appeal, the parties arrived at a compromise; as are suit whereof defendant No. 1 parted with some lands but of his share in favour of the plaintiff and defendant Nos. 2 and 3 and in terms of the said settlement the plaintiff got lands which have been described in schedule 'X' of the written statement, whereas defendant No. 1 was allotted lands described in schedule 'Y' of the written statement and defendant Nos. 2 and 3 were allotted lands described in Schedule 'Z' of the written statement. Thereafter the said mutation case was remanded by the appellate authority to the Anchal Padadhikari and the names of the parties were mutated in terms of the aforementioned compromise petition dated 15.12.1965.
12. Defendant Nos. 4 to 6 filed a written statement supporting the case of the plaintiff. Similarly, defendant Nos. 8, 9 and 11 to 13 have also supported the case of the plaintiff.
13. Upon pleadings of the parties, aforementioned, the learned trial court framed the following issues:
(1) Is the suit maintainable in its present form and reliefs claimed?
(2) Has the plaintiff and cause of action or right to sue the defendants?
(3) Is the suit barred by limitation?
(4) Is the suit barred under the principles of estoppel, waiver and acquiscence?
(5) Is the suit bad for non-joinder of necessary party?
(6) Whether the suit would fail as minor defendant No. 6 Arto Kumari has not been properly represented by her guardian?
(7) Has there been previous partition of the suit properties between the plaintiff and defendant Nos. 1 to 3?
(8) Is there unity of title and possession between the parties with respect to the suit properties if so, is the plaintiff entitled to get a decree for partition of his share in the same as claimed in the plaint?
(9) To what other relief or reliefs, if any, is the plaintiff entitled to?
14. The learned trial court took up issue No. 4 and held that the suit is barred under the principles of estoppel, waiver and acquiscence in view of the settlement arrived at by and between the parties in the aforementioned mutation appeal and which is contained in Ext. 'C' as also a deed of sale executed by the plaintiff wherein also he admitted the case of the previous partition (Ext. 'A'). With regard to the issue No. 5, the learned trial court held that the suit is also bad for non-joinder of Satyabhama Devi as a party to the suit inasmuch as after the death of Biswanath Pradhan, his properties vested in his wife Satyabhama Devi. With regard to the issue No. 6 it was held that minor defendant No. 6 Arto Kumari has not been properly represented by her guardian.
15. The learned trial court thereafter took up issue Nos. 7 and 8 together and it was held that there had been a previous partition of the suit properties between plaintiff and defendant Nos. 1 to 3 and as such a suit for partition was not maintainable. With regard to issue No. 3, the learned trial court held that the suit is barred by limitation. Issue Nos. 1 and 2 were also decided against the plaintiff.
16. Mr. Debi Prasad, learned Counsel appearing on behalf of the appellant, firstly submitted, that the purported deed of Compromise (Ext. C) is not admissible in evidence inasmuch as the same was not a registered instrument According to the learned Counsel, as partition of properties effected by reason of the said deed the same being an unregistered document, was inadmissible in evidence.
The learned Counsel further submitted that even on fact it is evident that the contesting defendants have not been able to prove that there had been a previous partition between the plaintiff and defendant Nos. 1 to 3.
17. With regard to the finding of the learned trial court to the effect that the suit was bad for non-joinder of necessary party. Mr. Devi Prasad, submitted that non-joinder of Satyabhama Devi widow of Bishwanath Pradhan will only render the suit for partition bad in respect of the properties described in Schedule 'C' of the plaint.
The learned Counsel, in view of the material on records did not question the finding of the learned trial court that Satyabhama Debi did not cease to have any interest in the property in suit on the ground that as she allegedly remarried Udainath.
18. It was further submitted by the learned Counsel that as the suit for partition in respect of the properties described in Schedule 'C' of the plaint must would fall on the ground of non-joinder of Satyabhama as a party to the suit, the question as to whether Arto being a minor, was properly represented in the suit or not become irrelevant.
19. The stand taken by Mr. Devi Prasad is correct to the aforementioned extent.
20. Evidently, the suit for partition was not maintainable, in view of non-joinder of Satyabhama Debi as a party in respect of the properties described in Schedule 'C of the plaint. It is, therefore, not necessary for this court to consider as to whether Arto was properly represented in the suit through her natural guardian or not.
21. With regard to the question as to whether there had been a previous partition or not, the learned Counsel has drawn ray attention to the statements of some witnesses examined on behalf of the parties.
22. According to the learned counsel, PW-10 stated that the properties were being possessed separately by the parties by way of convenience only and so far as the properties of Rajendra Pradhan is concerned they were being possessed jointly.
According to (his witness, the plaintiffs possess about 15-16 bighas of land; whereas Makaradhwaj Pradhan and Chitradhwaj Pradhan possesses about 35 bighas of land.
23. The learned Counsel has further drawn my attention to the statements of PW-5, PW-6 and PW-9 as also those of DW-1, DW-3 and DW-6.
24. It was further submitted by the learned Counsel that PW-10 in paragraph-20 of his evidence specifically disputed that he had put his signature on the compromise petition in the mutation appeal.
25. The learned Counsel, therefore, raised the following contentions in support of this appeal:
(i) There has been no previous partition amongst the co-sharers in respect of the properties described in Schedule 'B' of the plaint.
(ii) Even if there was a partition the same being unconcienable, should be reopened.
(iii) Ext 'C' could not have been looked into for the purpose of holding that there had been a partition amongst the co-sharers as the same was not a registered instrument.
26. Mrs. Jaya Roy, the learned Counsel appearing on behalf of the respondent, on the other hand, submitted that in this case, the court should presume that a partition had taken place amongst the co-sharers as it is the common case that the parties are residing separately, have their separate mess, cultivating the lands separately as also carry on transactions separately.
27. The learned Counsel further submitted that in view of the fact that in two deeds of sale which were executed by the plaintiff before any dispute arose, namely Ext. A and A/1, he specifically stated that he was disposing of his separate of the properties out of his own share and wherein he was in exclusive possession, the plaintiff must be held to be estopped and precluded from contending that there had been no partition by and between him and the contesting defendants-respondents.
28. The learned Counsel next contended that in this case, the question of re-opening the partitions the instance of the plaintiff does not arise inasmuch as there is no plea to the effect that any partition which had taken place amongst the co-sharers and therein the properties allotted in favour of the plaintiff was wholly unconscioniable regard being had to the extent and quality of the joint family properties.
29. The learned counsel, next contended that the compromise petition filed in the mutation appeal being Ext. C is not an instrument of partition inasmuch as thereby the parties have merely sorted out their differences as to whether the properties possessed by them separately should be allowed to be mutated in their respective names or not and thus the said compromise petition is not an instrument effecting partition of the joint family properties.
30. According to the learned Counsel from a perusal of the said compromise petition (Ext. C) it would be evident that the parlies had merely agreed to obtain orders of mutation in respect of properties which were in their separate possession on the intervention of their common friends and well wishers.
31. The learned next contended that in any event, the suit for partition was not maintainable in counsel view of the fact that admittedly, the plaintiff had not imploded his vendors in the suit.
32. The learned Counsel in this connection has drawn ray attention to Clause 2, Article 333 of the Mulla's Hindu Law and pointed out that the purchaser of a portion of the plaintiffs' share where the plaintiff himself is a co-parcener, would be a necessary party and in his absence the suit for partition will not be maintainable.
33. In view of the rival contentions of the parties, as noticed hereinbefore, the following questions arise for consideretion in this appeal:
(a) Whether the plaintiff has been able to the unity of title and unity of possession so as to be entitled to obtain a decree for partition?
(b) Whether the defendants have been able to prove a previous partition?
(c) Whether the compromise petition dated 15.12.1965 was admissible in evidence on the ground that it was compulsorily registrable?
(d) Whether the suit for partition filed by the plaintiff was maintainable in absence of Ganeshwar Tanti and Chhani Tauti?
Re: Question-C
35. By reason of sale-deed (Ext. A) dated 20.6.1975, the plaintiff transferred some lands in favour of one Ganeshwar Tanti. By another deed of sale dated 16.7.1980 (Ext-A/1), the plaintiff sold some lands in favour of one Chhuni Tanti.
36. Clause II of Article 333 of the Mulla's Hindu Law reads as follows:
Parties to suit--(a) The plaintiff in a partition suit should implead as defendants:
(i) the heads of all branches (c);
(ii) females who are entitled to a share on partition;
(iii) the purchaser of a portion of the plaintiff's share, the plaintiff himself being a coparcener?
(iv) if the plaintiff himself is a purchaser from the coparcener his alienor.
The above are necessary parties and if any of them is not joined, the suit is liable to be dismissed. The entire joint family must be represented either expressly or implicitly.
37. Mulla in his aforementioned treatise clearly stated that the person named hereinbefore are necessary parties to a suit for partition and in their absence the suit has to be dismissed.
Evidently, by reason of the aforementioned sale deeds dated 20.6.1975 and 16.7.1989 (Exts. A and A/1), the plaintiffs have sold some properties in suit in favour of stranger to the joint family and the plaintiff himself claimed to be a coparcener.
38. As he has filed a suit for partition, it must be held that by reason of aforementioned deeds of Sale (Exts. A and A/1), has transferred his undivided interest in the joint family property. In such a situation, the the purchasers from the plaintiff were necessary parties to the suit.
Re:- Questions A and B.
39. So far as the contention of the appellant to the effect that there has been no partition amongst the co-sharers is concerned, it is true that under the Hindu Law, existence of a joint family should be presumed.
However, the said presumption weakens as time passed by. Such a a presumption is also a rebuttable one.
40. In a case where the defendant alleges that there had been a partition amongst the co-sharers a long time back, direct evidence of partition may not be available and thus in such, a situation, the court may draw an inference of partition amongst the co-sharers from the conduct of the parties and upon taking into consideration (sic) as to whether they were having separate mess, separate residence, separate cultivation of the properties and separate transactions etc.
41. In the instant case, the plaintiff who has examined himself as P.W. 10 in Paragraph 16 of his deposition categorically admitted that all the three branches namely, the branch of Kailash Pradhan son of Puroshottam Pradhan and himself are having separate mess and all the three branches are having separate residence.
He further admitted that the said state of affairs had been continuing since once one year after the death of Purusottom Pradhan. The plaintiff further admitted that from that time onwards they have been cultivating their lands separately.
He however, stated that he gets lands from his brother by estimation.
42. P.W. 5 (Prabhakar Pradhan) in Paragraph-15 of his evidence admitted that all the heirs of Rajendra Pradhan representing three branches have been cultivating their separately. He further admitted that Chhatu Pradhan also had all along been possessing 15-16 bighas of land separately.
He further admitted that Chhatu Pradhan had a dispute with other co-sharers about 19 years back This witness further admitted that after the dispute, Chhatu Pradhan has been possessing the lands at Ganuri and since then he has been in possession thereof.
43. P.W. 6, Sudhakar, in Paragraph-6 of his evidence also admitted that Chhatu Pradhan, Kailash Pradhan as well as Chitradhwaj Pradhan and Makaradhwaj Pradhan had been residing in separate houses and they have separate mess as also have been cultivating their lands separately.
44. Similarly, D.W. 1 (Udainath) in Paragraph-9 of his deposition stated that all the three parties are residing separately and they have their separate mess.
45. D.W. 9 in Paragraph-1 of his deposition stated that the sons of Rajendra Pradhan has partitioned their properties are having residing separately and having mess separately.
According to this witness, the partition took place two years after the death of Purushottam Pradhan.
This witness furtuer stated that he was present when the partition took place.
In Paragraph-5 of his deposition, he stated that at the time of partition, Bharat Pradhan, Dinbandhu, Deetari, Roja Mudi and others were present but no instrument in writing was executed but Amin was present.
46. D.W. 10 in Paragraph-1 of his deposition also stated that all the parties had their separate resident and mess.
47. D.W. 14 (Kailash Pradhan) is one of the defendants. In Para-graph-3 of his deposition, he supported his case of partition.
48. It is true that some of the witnesses examined on behalf of the plaintiff namely P.W. 10 in Paragraph-4. and P.W. 5 in Paragraph-15 and P.W. 6 in Paragraph 6 of their evidences disputed that there had been a partition. P.W. 6 has also denied a suggestion that there had been partition.
However, as indicated hereinbefore, the said dispute has to be resolved keeping in view the admitted facts.
49. Separation in food and residence for a long time amongst brothers of a Hindu family, independent transaction of property, separate possession and enjoyment of properties although by themselves not conclusive to prove partition but the cumulative effect of such fact, may show that there had been partition amongst the brothers during their life-time.
Reference, in this connection may be made in Gangabai and Ors. v. Faklrgowda Somayapagowda Desai and Ors. AIR 1930 P.C. 93 and in Arjun Mahto and Ors. v. Monda Mahtain and Ors. .
50. The decision of this Court in Arjun Matho's case aforementioned is also an authority for the proposition that a partition cannot be directed to be re-opened unless the plaintiff leads evidences to show that inequality in the division of land between the plaintiff and the defendant was such, which may be shocking of the conscience.
It was observed:
The principles of Hindu Law is equality of division, but inequality 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.
51. As indicated hereinbefore, this case satisfies the requirements of partition which can be inferred from the conduct of the parties themselves.
52. In this case, further it is evident from the sale deeds executed by the plaintiffs i.e., Ex Section A and A/3, that he sold lands out of his own share. Thus deeds of sale were executed by the plaintiff-appellant on 20th June, 1975 and 16th July, 1980 respectively and there is no dispute in this regard.
53. It is now well known that when a deed contains stipulation to the effect that there has been a division between the executor and his co-sharers to the effect that their shares have been defined, the same constitutes a relevant fact to prove partition.
54. Both the aforementioned deeds of sale although are not a deeds of partition, but the very fact that therein the plaintiffs stipulated that he had been selling the properties out of his own share clearly go to show that by the time when the said deeds were executed there had been a division in the joint family, as otherwise question of one co-parcener's selling a specified property to an outsider out of his own share does not arise.
55. In a case, where the family is joint; only the entire joint family as a body can make transfer except in some cases, where the Manager of the joint family or the father can transfer the properties for certain purposes.
56. It is further well known that in Hindu Law, the concept of the separation of a joint family is a mere unequivocal declaration by any member to show that he would separate from the rests of the family is sufficient.
Reference, in this connection may be made in Ram Eqbal and Ors. v. Smt. Khira Devi and Ors. .
57. In the aforementioned background, the execution of the compromise petition dated 16.12.1975 before the Revenue authorities, in Ext. C should be considered.
58. By reason of the said petition, the praties merely came to an agreement that the lands mentioned in different schedules thereof be allowed to be mutated in the names of the respective parties thereto. Although, the said compromise petition was filed on 15.12.1975, the suit was filed on 7.8.1981.
59. In between the aforementioned period, the plaintiff executed the aforementioned deeds of sale which were marked as Exts. A and A/1 on 20th June, 1975 and 16th July, 1980 respectively.
60. In this situation, not only Ext. C will be admissible in evidence for the purpose of proving the conduct of the parties but also for the purpose of showing that all parties not only agreed to separate themselves but had also agreed to possess the land separately and get their names mutated in the Revenue records.
61. It is now well known that if a transaction is given effect to and has been acted by the parties for a long time, they should not be permitted to question the same after a long time.
Reference, in his connection may be made to Chandrakant Misir and Ors. v. Balkrishaa Misir and Ors. .
62. The said Ext. C shall also operate as estoppel as against the plaintiff in the facts and circumstances of this case.
Reference in this connection, may be made in Ram Eqbal and Ors. v. Smt. Khira Devi and Ors. , and in Ram Gopal and Ors. v. Smt. Maya Devi and Ors. .
63. Mr. Devi Prasad, however, has relied upon a decision reported in Smt. Chandrawati v. Lakshmi Chand and Ors. . In the said decisions it has been held that document acknowledging prior partition need not be registered but documents effecting partition is compulsory registrable. The ratio of the aforementioned decisions are well settled.
64. But, as indicated hereinbefore, by reason of the aforementioned compromise petition (Ext-C) no partition has been effected amongst the parties and the executants thereof merely agreed that their names should be mutated in the Revenue records with regard to the lands in their separate possession
65. It is true that the plaintiff has denied the execution of the aforementioned compromise petition, but it may be noticed that he did not deny that he was a party to the appeal and the appeal was disposed of in terms of the compromise and thereafter, the Anchal Adhikari passed an order of mutation in terms of the said compromise petition It is unbelievable that the plaintiff was not aware of the said order, although, the same was passed in the year 1965. The said compromise petition bears the signature of the lawyer of the plaintiff.
66. It is now well known that a duly appointed lawyer is entitled to enter into the compromise.
Reference, in this connection may be made in Employers in relation to Manoharlal Colliery Calcutta v. K.N. Misra and Ors. AIR 1975 SC 1622 and Smt. Jamilabai Abdul Kadir v. Shankarlal Gulabchand and Ors. .
67. In the result, there is no merit in this appeal, which is accordingly dismissed with costs.