Patna High Court
Smt. Hema Devi & Ors vs Raghaw Singh & Ors on 16 December, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.165 of 1976 dt.16-12-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.165 of 1976
(Against the judgment and decree dated 22.12.1975 passed by 5th
Additional Subordinate Judge, Motihari in Partition Suit No.109 of
1972/127 of 1974).
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Smt. Hema Devi & Ors.
.... .... Defendants-Appellants
Versus
Raghaw Singh & Ors.
.... .... Plaintiffs-Respondents
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Appearance :
For the Appellant/s : Mr. Ram Suresh Roy, Sr. Advocate
Mr. Kamla Prasad Roy, Advocate with him.
For the Respondent/s : Mr. Suman Kumar
Mr. A.N.Singh
Mr. Subodh Chandra Jha, Advocates.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 16-12-2014
1. The defendants have filed this First Appeal against
the judgment and preliminary decree dated 22.12.1975 passed by the
learned 5th Additional Subordinate Judge, Motihari in Partition Suit
No.109 of 1972/127 of 1974.
2. The original plaintiff-respondent, Naga Singh filed
the aforesaid partition suit for partition of his 1/4th share in the suit
property. After death of his father, the plaintiff claimed 4 3/4th share.
The plaintiff claimed the relief of partition alleging that Bhukhlal
Singh had two sons namely Rama Nand Singh and Ramautar Singh.
Rama Nand Singh had three sons namely Nagina Singh, Rajendra
Singh and Lal Babu Singh. Rama Nand Singh, the first son is original
Patna High Court FA No.165 of 1976 dt.16-12-2014
2
defendant whereas Ramautar Singh, the second son of Bhukhlal Singh
is defendant no.2. Both of them have died. The sons of Rama Nand
Singh are defendant nos.3 to 5. The plaintiff alleged that all the
parties are members of joint family. The plaintiff retired from
Military service in 1962 and joined in cultivation with his father. By
their hard labour, improvements were made and out of their income,
properties were purchased in the names of one member or the other.
A saw mill was started and also a tractor was purchased out of the
said income. Defendant no.1, Rama Nand Singh being the eldest
brother was Malik and was managing the joint family properties. The
father of the plaintiff namely Ramautar Singh being illiterate man was
under influence of his elder brother, Rama Nand Singh. The plaintiff
demanded partition but the defendant no.1 refused. Therefore, the suit
was filed.
3. The father of the plaintiff and on his death, his
other heirs who were substituted neither appeared nor filed written
statement. The suit was contested mainly by defendant nos.1 and 3 to
5. Their main contention is that there had already been partition
between the two brothers i.e. two sons of Bhukhlal Singh on
05.09.1947and since then they are coming in separate possession of the properties. All the properties acquired in the name of members of the family of branch of defendant no.1 are the self-acquired properties Patna High Court FA No.165 of 1976 dt.16-12-2014 3 of the defendants which they acquired after partition. The defendant no.1 got some more lands in partition of the year 1947 considering the fact of his hard labour. Since there was no evidence showing partition, a document was prepared on 24.02.1972 where both the brothers have signed. The Jamabandi has been separately opened.
4. On the basis of the aforesaid pleadings of the parties, the following issues were framed by the court below:
I. Is the suit as framed maintainable?
II. Has the plaintiff any cause of action for the suit?
III. Is the plaintiff entitled to a decree for partition, if so to what
extent and in which property?
IV. Whether the story of partition propounded by the defendant
no.1 and 3 to 5 is correct?
V. Has the plaintiff unity of title and unity of possession with
regard to the suit land?
VI. To what relief or reliefs, are if any is the plaintiff entitled?
5. The trial court after appreciating the evidences came to the conclusion that the contesting defendants have failed to prove the story of partition between the parties in the year 1947 by cogent and substantial evidence. The court below also recorded the finding that the plaintiff is entitled to the share as claimed by him and accordingly, decreed the plaintiff's suit.
6. The learned senior counsel, Mr. Ram Suresh Roy for the appellants submitted that the defendants categorically pleaded Patna High Court FA No.165 of 1976 dt.16-12-2014 4 in the written statement that partition between the two brothers took place in the year 1947. Yadast paper was prepared in the year 1972 and on this document, the father of the plaintiff has signed. Therefore, the father of the plaintiff admitted the fact that in 1947, there had been partition and in the document, Schedules of the properties have been mentioned which were allotted in favour of the parties. So far this document is concerned, it was never challenged by the plaintiff or his father during his lifetime. It is not the case of the plaintiff that the document is obtained fraudulently or that his father has not signed the document or that by playing undue influence, the defendants got it executed by father of the plaintiff. Simple suit for partition has been filed alleging that there had been no partition. Therefore, according to the learned counsel, unless this document which has been marked as Exhibit A is set aside, the plaintiff is not entitled to any relief for partition.
7. The learned counsel further submitted that although, the plaintiff did not challenge the legality or otherwise or genuineness or otherwise of this document but the court below discarded this document on assumption and presumption only. The learned counsel further submitted that when the genuineness of the document is not under challenge and the existence of the same is not denied, the court could not have discarded the evidence on flimsy Patna High Court FA No.165 of 1976 dt.16-12-2014 5 ground on presumption only.
8. The learned counsel further submitted that in the written statement, the defendants categorically pleaded that the properties have been acquired by the defendants in their names separately after partition which are their self-acquired property but the court below without considering the fact that the plaintiff has not pleaded about the existence of nucleus by which the properties could have been acquired, decreed the plaintiff's suit. According to the learned counsel, the defendants-appellants have produced as many as 34 registered sale deeds from the year 1947 till the year 1965 which are standing in the name of the members of the family of defendants. According to the learned counsel, 13 sale deeds have been produced by the defendants which are Exhibit C series which are in the name of Tetri Devi i.e. widow of Rama Nand Singh, defendant no.1 but the properties of Tetri Devi have been included in the partition suit by the plaintiff and the court below without considering the fact that Tetri Devi is not party granted the decree of partition with respect to the property of Tetri Devi also. The other sale deeds are either in the name of defendant no.1 or in the name of defendant nos.3 or 4. The court below has not at all considered these Exhibit C series and decreed the plaintiff's suit for partition. It is not the case that all these properties are in the name of karta or in the name of only one member Patna High Court FA No.165 of 1976 dt.16-12-2014 6 of the family. It shows that the defendants have purchased the properties in their own name, therefore, the presumption is that they are the owner of the said properties which are standing separately in their names. All these aspects of the matter have not been considered by the trial court. The learned counsel further submitted that the court below has not properly appreciated the evidences of the parties. On these grounds, the learned counsel submitted that the appeal may be allowed and the impugned judgment and decree be set aside and the plaintiff's suit be dismissed.
9. On the other hand, the learned counsel for the respondents submitted that no explanation has been given by the appellants as to why after more than 25 years of the so called partition in the year 1947, Exhibit A was executed in the year 1972. The said fact clearly indicates that the document is a forged and fabricated document. The deed i.e. Exhibit A has been termed as deed of taksimnama which means deed of partition. In fact, by this deed, property was not partitioned, therefore, it is wrong nomenclature. According to the learned counsel, the deed is in fact, admission of partition because by Exhibit A, title did not confer on the parties. The learned counsel further submitted that the admission made by the father of the plaintiff will not be binding on the plaintiff because the plaintiff is not claiming through his father rather being the coparcener, Patna High Court FA No.165 of 1976 dt.16-12-2014 7 he has a right by birth in the joint family property, therefore, by any admission made by the father, who is another coparcener, the share of the plaintiff cannot be decreased. Moreover, the admission made by father in Exhibit A was never acted upon and the plaintiff has explained the said admission. In such circumstances, Exhibit A is not reliable and on the basis of this Exhibit A, no finding of previous partition can be recorded and, therefore, the learned trial court has rightly disbelieved this document. Further, to show jointness, the plaintiff has produced Exhibit 1 and 2 series which are the rent receipts produced from the custody of the plaintiff. Exhibit 3 series are the notices issued by L.R.D.C. and one notice of agricultural income tax which are in the name of Rama Nand Singh. Exhibit 4 series are the letters and Exhibit 5 is the registered envelop. The learned counsel further submitted that money suit No.22 of 1971 was filed by Anil Kumar and others against the two brothers for payment of money which clearly indicates that the outsiders were also recognizing both the brothers as joint. The learned counsel further relying on Exhibit 15, the written statement filed by Rama Nand Singh submitted that at paragraph 6 of Exhibit 15, Rama Nand Singh pleaded that unless Ramautar Singh is made party, the suit would fail as the suit is bad for non-joinder of necessary party which also clearly indicates that the brothers were joint and there had been no partition. Patna High Court FA No.165 of 1976 dt.16-12-2014 8
10. The learned counsel further submitted that since all the properties have been purchased out of the income of the joint family, therefore, the property although are standing in the name of either defendant no.1 or his wife or any other defendants, are all joint family properties. The learned court below considering all these aspects of the matter has, therefore, clearly recorded the finding that there had been no partition between the parties. On these grounds, the learned counsel submitted that the First Appeal has got no merit, as such, is liable to be dismissed with cost.
11. At the time of hearing of this First Appeal, I also heard the learned counsels for the parties on I.A. No.5967 of 2009. This application has been filed by the respondents under Order 39 Rule 2A of C.P.C. for initiating a contempt proceeding against the appellants.
12. The learned counsel for the respondents submitted that while hearing injunction application, both the parties had undertaken that they will not transfer any property and accordingly, the injunction application was dismissed. The application for injunction was filed by the plaintiffs-respondents. Subsequently, violating the said undertaking, the appellant, Rajendra Singh executed sale deed dated 16.12.2008 and sold 2 kathas 15 dhurs land. The sale deed has been annexed with the I.A. Patna High Court FA No.165 of 1976 dt.16-12-2014 9
13. On the contrary, the learned counsel for the appellants submitted that in fact, the application for injunction was filed by the appellants for restraining the respondents and at the time of hearing of the injunction application, the plaintiff-respondent stated that he is ready to give undertaking that he will not execute any transfer deed on condition that the appellants also give a similar undertaking. The learned counsel, Mr. Kamla Prasad Roy on behalf of the appellants accepted the suggestion and accordingly, in view of the undertakings, the injunction application was dismissed. Therefore, the injunction application was filed by the appellants and because of undertaking given by the plaintiffs-respondents, the application has been dismissed. The learned counsel, Mr. Kamla Prasad Roy submitted that there was confusion because of the fact that the injunction application was dismissed. The alleged disobedience is not willful, therefore, the appeal may be decided and if the appeal is dismissed, the sale deed may be set aside. In view of the aforesaid submission of the parties, this application is being disposed of along with this First Appeal.
14. The learned counsel, Mr. Suman Kumar submitted that this matter has been remanded by the Supreme Court and cost of Rs.5,000 was directed to be paid by the appellants to the respondents but the cost has not been paid till date. On the contrary, the learned Patna High Court FA No.165 of 1976 dt.16-12-2014 10 counsel for the appellants submitted that the cost has already been paid to Naga Singh, the plaintiff and thereafter, Naga Singh died.
15. Perused the order of the Supreme Court dated 13.08.2002 passed in Civil Appeal No.4960 of 2002 arising out of S.L.P.(C) No.11413 of 2001. It appears that while allowing the application, the Supreme Court directed that the appellants shall pay to the respondents a sum of Rs.5,000 by way of cost. Oral submission has been made by the respondents that cost has not been paid and likewise, it is submitted by the appellants that cost has been paid. It may be mentioned here that this order is of the year 2002 but still today, the respondent has not filed any affidavit stating that the cost was not paid. Therefore, there is nothing on record regarding either payment of the cost or non-payment. However, if at all cost was not paid, it was expected from the respondents that he should have filed appropriate application before the Supreme Court. After such a long period i.e. after 13 years of the order, when this appeal is being taken up, this objection is raised for the first time. I, therefore, directed the parties to argue the case on merit presuming that the order passed by the Supreme Court has already been complied with without making any unnecessary enquiry regarding this fact and then the parties argued the case on merit.
16. In view of the contentions of the learned counsel Patna High Court FA No.165 of 1976 dt.16-12-2014 11 for the parties, the points arise for consideration in this First Appeal are:
I. Whether there is unity of title and possession between the parties with respect to the suit property and whether there had been partition as alleged by the defendants or no partition as alleged by the plaintiffs?
II. Whether the properties standing in the name of defendants are joint family property or are the self-acquired properties of the person in whose name the sale deeds stand?
17. Since both the points are interrelated, both the points are decided together. The main contention of the plaintiff is that by hard labour, much improvement was made and the properties were purchased in the name of one member or the other, therefore, the properties are joint family properties. The plaintiffs retired from Military service in the year 1962 and he was also cultivating the lands with his father and because of their hard labour, sufficient income was there by which the properties were purchased. Except this, there is no other pleading regarding as to whether the properties are the ancestral properties or regarding the nucleus of the joint family.
18. On the contrary, according to the defendants, whatever properties were acquired by the brothers was partitioned between them in the year 1947. Thereafter, the properties acquired by the defendants are the self-acquired properties. In the year 1972, a deed was executed by both the brothers wherein the father of the Patna High Court FA No.165 of 1976 dt.16-12-2014 12 plaintiff admitted the fact that there had already been partition in the year 1947. Admittedly, this deed was never challenged either by the father of the plaintiff or by the plaintiff himself. Now, therefore, the execution of this deed dated 24.02.1972 is admitted by father of the plaintiff. This document has been produced by the defendants- appellants in support of the fact that there had already been partition between the parties. As stated above, at the time of hearing of this appeal, the learned senior counsel for the appellants gave much emphasis on this admitted document and submitted that unless this document is set aside, the plaintiff is not entitled for partition of the properties. The defendants have also examined witnesses. D.W.1 has proved Exhibit A series. D.W.8 is the scribe of this Exhibit A.
19. On the point of partition, the defendants have examined D.W.3 who has stated that 30 years ago, the partition took place between the parties. D.W.4 has stated that since long, he is seeing the parties in separate possession. D.W.5 and 7 also have stated regarding partition and separate possession.
20. It is settled principles of law that a Hindu family is presumed to be joint till the contrary is proved. Since the presumption is in favour of the plaintiffs regarding jointness, it is for the defendants to prove previous partition. As stated above, to prove this previous partition, the witnesses have been examined as discussed Patna High Court FA No.165 of 1976 dt.16-12-2014 13 above and documentary evidence, Exhibit A has been produced. So far the plaintiff is concerned, the only case is that the properties have been acquired out of the income from hard working of both the brothers.
21. From perusal of Exhibit A, it appears that the father of plaintiff categorically admitted that there had been partition between two brothers in the year 1947 and Schedules of properties were prepared in Exhibit A, which lands were allotted to which brother. Admittedly, the plaintiff has not sought for any declaration with respect to this document, Exhibit A, which is a registered document.
22. The Supreme Court in the case of Prem Singh v.
Birbal, (2006) 5 Supreme Court Cases 353 has held that there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.
23. In view of the aforesaid settled principles of law, the presumption of validity and genuinity of the document is in favour of the appellants and thus, this document is obstacle in the way of the plaintiff for reopening partition.
24. The Hon'ble Supreme Court in the case of Md.
Patna High Court FA No.165 of 1976 dt.16-12-2014 14 Noorul Hoda v. Bibi Raifunnisa and others, (1996) 7 Supreme Court Cases 767 has held that when the plaintiff seeks to establish his title which cannot be established without avoiding the instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that instrument cancelled or set aside.
25. As stated above, in this Exhibit A, the father of the plaintiff clearly admitted the partition between the two brothers in the year 1947. From perusal of the judgment of the court below, it appears that the court below disbelieved this document only on the ground that it has been executed and registered after 25 years of alleged partition without considering the fact that the execution and genuineness of the document is not under challenge rather the document is an admitted document and the presumption of its validity is in favour of the defendants-appellants.
26. The learned counsel for the respondents submitted that by this document, Exhibit A, the plaintiff's father was given much less land than he was entitled for and major part of the land were allotted in favour of Rama Nand Singh, therefore, the share of the plaintiff is decreased. The plaintiff is not claiming any share through his father rather he filed the suit for partition of his share as coparcener. So far this submission of the learned counsel for the Patna High Court FA No.165 of 1976 dt.16-12-2014 15 respondents is concerned, it may be mentioned here that on the date of execution of the deed, Exhibit A, the interest of father of the plaintiff and the plaintiff was joint in the subject matter of the deed.
27. This Court in the case of Yogendra Prasad & Ors. vs. Samrendra Nath Gupta & Ors., 2012(2) PLJR 198 has held that "use of admission of one against the other can be justified only when the said admission has been made at the time when both of them were having joint interest in the subject matter of the suit." Admittedly, as stated above, the plaintiff and his father had the joint interest in the subject matter of the suit, therefore, the admission made by his father regarding previous partition of the year 1947 will be binding on the plaintiff.
28. Now let us examine other aspect of the matter.
The plaintiff in the plaint nowhere stated that the properties are the ancestral properties and both the brothers on the death of their father inherited the property from their father. On the contrary, the plaintiff's case is that by hard labour, the properties have been purchased in the name of one member or the other member of the joint family. If the properties have been purchased either in the name of one member or the other member then it will be their exclusive property because those properties will never be the ancestral properties. Unless it is ancestral property, the plaintiff will never be Patna High Court FA No.165 of 1976 dt.16-12-2014 16 the coparcener. Therefore, during the lifetime of father, the plaintiff has got no share. It is also not the case of the plaintiff that Bhukhlal Singh was the owner of the property and after his death, his two sons inherited the property. Now let us consider the other aspect that if the property belonged to Bhukhlal then on his death also, the property will not go to Naga Singh because son's son is not a class I heir. The class I heir is son of a predeceased son. However, in the present case, it is not the case of the plaintiff that the property belonged to Bhukhlal Singh or that Bhukhlal inherited the property form his ancestor i.e. in other words, the properties are the ancestral properties belonged to the coparceners. In view of the above facts, in any way, if the property belonged to Bhukhlal then also on his death, plaintiff is not entitled to any share because he is not class I heir of Bhukhlal Singh because at that time, his father was alive. If the property was acquired by both the brothers then also plaintiff is not entitled to any share because the property will never be the coparcenery property. Both the brothers will be the owner.
29. In the present case, there is no pleading out of which fund or nucleus the properties have been acquired by whom and when. In such view of the matter, the submission of the learned counsel for the respondents that the plaintiff is claiming his property being the coparcener and he is not claiming through his father is not Patna High Court FA No.165 of 1976 dt.16-12-2014 17 acceptable because of the fact that there is no pleading regarding coparcenery nature of the family and property. The plaintiff will be entitled to his share only after death of his father. It is admitted fact that the father of the plaintiff died, therefore, he will be entitled to inherit those properties allotted to his father but cannot claim the partition again alleging that he is a coparcener.
30. It is settled principles of law that the person who alleges that the property is joint family property has to prove this fact. In the present case, all the 34 sale deeds have been produced by the defendants-appellants. All these sale deeds are in the name of Tetri Devi i.e. mother of defendant nos.3 to 5 or in the name of defendant nos.1, 2 and 3. The presumption will be that the properties are the self-acquired properties of the defendants in whose name, the property stands. It may be mentioned here that Tetri Devi was not even made party-defendant in the suit. Admittedly, the properties which are standing in the name of Tetri Devi, covered by Exhibit C-6 to C-18, are included in the partition. As stated above, it is not the case of the plaintiff that the properties have been purchased by the karta in his own name. Moreover, there is no pleading regarding nucleus.
31. From perusal of the judgment of the trial court, it appears that the court below has not discussed all these matters and recorded the finding that there had been no partition between the Patna High Court FA No.165 of 1976 dt.16-12-2014 18 parties and the properties have been purchased when the family is joint. This finding of the court below is contrary to the settled proposition of law.
32. So far the submission of the learned counsel for the plaintiffs-respondents that there is unequal share given in previous partition which is evidenced by Exhibit A is concerned, in my opinion, that is not a ground for reopening partition particularly when the partition took place in the year 1947 and thereafter, the defendants have acquired many properties by themselves. The plaintiff is unable to either plead or prove the nucleus of the joint family and as to whether the nucleus which was in existence was sufficient enough to purchase the properties covered by Exhibit C series.
33. From the discussion made above, it is clear that the Exhibit A which is registered document completely demolishes the case of the plaintiffs. Merely because it has been executed after 25 years, the same cannot be thrown away particularly when the father of the plaintiff who is defendant no.2 never challenged the said document on any ground. The limitation for challenging the document is only three years as provided under Article 58/59 of the Limitation Act. Now, therefore, the document has attained finality.
34. So far the other documentary evidences regarding rent receipts or letters or notice jointly to the brothers or any suit filed Patna High Court FA No.165 of 1976 dt.16-12-2014 19 by others against the brothers are not sufficient enough to displace the statements regarding previous partition made in Exhibit A. So far statement made in Exhibit 15 at paragraph 6 is concerned also, it cannot be said that it is an admission that there had been no partition between two brothers. It was only pleaded that the suit is bad for non- joinder of necessary party i.e. the brother of the defendant no.1. It was only pleaded that the property is khandani property. On this pleading only, the admission made in the registered document, Exhibit A cannot be displaced.
35. The learned court below has not considered all these aspects of the matter and has approached the case in wrong angle. It appears that the learned court below has not at all considered Exhibit C series and without looking to the fact that Tetri Devi has not made party and without considering non-pleading of nucleus, has decreed the plaintiff's suit.
36. In view of my above discussion, I find that the plaintiffs have failed to prove unity of title and possession between the parties. On the contrary, the defendants have been able to prove that there had already been partition between two brothers in the year 1947. The properties purchased after the partition of the year 1947 are the self-acquired properties of the defendants. The finding of the learned court below to the contrary is, therefore, set aside.
Patna High Court FA No.165 of 1976 dt.16-12-2014 20
37. In view of my above discussion and in view of the submission of the learned counsel for the appellants that because of confusion and that the transfer was made bonafidely and the order is not willfully disobeyed, in my opinion, it is not expedient in the interest of justice to initiate any contempt proceeding against the appellants as in my opinion, the disobedience is not willful. Accordingly, the I.A. No.5967 of 2009 is rejected.
38. In the result, this First Appeal is allowed. The impugned judgment and decree are set aside and the plaintiff's suit is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.
(Mungeshwar Sahoo, J) Saurabh/-
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