Patna High Court
Ramnagina Sah And Ors. vs Harihar Sah And Ors. on 27 August, 1965
Equivalent citations: AIR1966PAT179, AIR 1966 PATNA 179
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for partition of their 1/6th share in the property described in Schedule 'A' of the plaint.
2. The relationship between the parties will appear from the following genealogical table mentioned in the plain.
UGRACHAND SAH
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_____________|________________________________
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Lalji Sah Gopal Sah
= Sm. Budhia Sahuain (1st wife = Sm. Jitni Sahuain = Mt. Jiani Sahuain
(2nd wife). (Def. No. 7)
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______________________________________|
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Harihar Sah Shiva Gobind Ramnagina Sah
(Deft. No. 1) Sah (Def. No.2) (Plff. No. 1)
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Ramsankar Sah ____|____________ |
(Deft. No. 3) | | |
| Ramchandara Lachhaman |
Nandlal Sah Sah(Deft. No.5 Sah (Deft. |
Minor Deft. No.4 minor) No. 6 minor |
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______________|_______________________
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Ramnath Sah Kedar Sah Sibnath Sah (Minor
(Minor plff.No.2) (Minor plff No. 3) plff. No. 4)
3. The plaintiffs' case was that they and the defendants separated in mess and properties long ago but the property in suit mentioned in Schedule 'A' was still joint between them and they were in joint possession of the same. Harihar Sah (defendant No. 1) being the eldest member of the family was the karta of this family and in that capacity he was managing that property on behalf of the parties to this suit and in course of the management defendant No. 1 let out to different tenants on monthly rent the house described in Schedule 'A' of the plaint. The income received from that property used to be divided between the plaintiffs and defendants according to their respective shares. Plaintiffs had 1/6th share. Defendants 1, 3 and 4 also had 1/6th share. Similarly defendants 2, 5 and 6 as well had 1/6th share and lastly defendant No. 7 had half share in the said property. Some time in November 1958 a dispute arose between the plaintiffs on one hand and defendant No. 1 on the other in respect of the management of the said property and the division of the income thereof and hence plaintiff No. 1 requested defendant No. 1 and other defendants to divide the said property amicably but they paid no heed to it and ultimately refused to divide the said property.
In these circumstances, the plaintiffs instituted the suit giving rise to this appeal on 18th August 1959 for partition of this 1/6th share in the property described in Schedule 'A' of the plaint. The property has been described in Schedule 'A' as holding No. 339 in ward No. 6 of the Dumka Municipality in Dumka town and it consists of a pucca building with a portion having tiled roof on an area of 5 kathas and 1 1/4 dhurs of land.
4. There were several written statements in this case. The real contest was by defendants 1 and 3 and their case was that the plaintiffs and defendants became separated in mess and properties long ago and the property in suit was no longer a joint property of these parties and they were not in joint possession of it. Defendant No. 1 claimed to be the sole owner of this property for more than several 12 years and he had throughout paid the rent and Municipal taxes and got receipts in his name. Their case further was that defendant No. 1 acquired the property in suit by a settlement from the then landlord Mr. Grant in the year 1928 and, by virtue of a private partition on 5th Bhado 1337 Amli between Lalji Sah, Gopal Sah and Shiva Govind Sah (defendant No. 2), who were members of the joint family with Lalji Sah as the karta thereof this property in suit was allotted to the exclusive share of defendant No. 1. Defendant No. 1 then constructed a house on the said acquired land out of his own money, after having obtained the permission of the Municipality. Defendant No. 1 asserted his exclusive title in respect of the said property in capacity of a sole owner and he claimed to have realised the rent from the tenants.
On these grounds, he resisted the suit for partition. Defendant No. 7 supported the case of defendants 1 and 3. Defendant No. 4 was a minor and his guardian ad litem filed a formal written statement. Defendants 2, 5 and 6, on the other hand, filed one written statement supporting the plaintiffs and they wanted a partition of their 1/6th share as well.
5. Issue No. 1 related to the maintainability of the suit in its present form and the court held that the suit was maintainable. Issue No. 4 was as to whether the suit was barred by Section 42 of the Specific Relief Act and this was answered in the negative. Issue No. 3 was whether the suit was barred by limitation and this was answered in favour of the plaintiffs. Issue No. 5 reads thus: "Are the plaintiffs entitled to a decree for partition of the suit property?" The Additional Subordinate Judge came to the conclusion that the house in suit was exclusively owned and possessed by the contesting defendants, that is, by defendants 1, 3 and 4 after the said partition which took place on the 5th Bhado 1337 B. S. and since then the other defendants ceased to have any title or possession over the same. Accordingly he dismissed the suit, holding that the plaintiffs were not entitled to a decree for partition of the property in suit. Being aggrieved by this decree, the plaintiffs have preferred this appeal.
6. Learned counsel for the appellants submitted that the land on which there was a house (described in Schedule 'A') having been acquired by the joint family in the name of defendant No. 1 and that case of the plaintiffs having been found to be correct by the trial Court, it ought to have been held that the plaintiffs were entitled to a partition of the property described in Schedule 'A' and the finding of the trial Court to the contrary was vitiated and erroneous. In order to appreciate this contention, it will be proper to mention in detail the various findings of the learned Additional Subordinate Judge. He held, relying on exhibit 1 that the land on which the house in question stood at present was acquired in the name of defendant No. 1 by the joint family of the parties by virtue of the said settlement in 1928 while they were all members of a joint Hindu family governed by Mitakshara school of Hindu law and that the contention of the contesting defendants 1, 3 and 4 or that of defendant No. 7 that the same was acquired by defendant No. 1 for his own benefit and on his own account was not correct. This finding is undoubtedly in favour of the plaintiffs which means that the land on which the house stood was acquired by the joint family.
After giving this finding, the learned Additional Subordinate Judge considered the evidence of the plaintiffs to determine whether they had discharged the onus for proving that the property in suit was excluded from the partition and his finding was that the plaintiffs had miserably failed to discharge the said onus. He then considered the evidence adduced on behalf of the contesting defendants and concluded that the house in suit came to the share of defendant No. 1 by the partition which took place on 5th of Bhado 1337 B. S.
7. Defendants 1 and 3 had made out in their written statement that defendant No. 1 had taken settlement of the land on which the house stood from the landlord Mr. Grant in the year 1928 out of his own income, but this case is belied by the deed of relinquishment (Ext. 1) dated 19th June 1930. Defendant No. 1 executed this deed and he categorically stated in it that he had acquired 5 kathas 1 1/4 dhurs of land in Dumka town from the Manager, Dumka estate, by a registered patta dated 30th November 1928 but the said land belonged to his father Lalji Sah and his uncle Gopal Sah. There is a further recital that his father and uncle will have all the rights in respect of that land and the executant (defendant No. 1) will not have exclusive title in that land. Defendant No. 1 (D. W. 1) made out in evidence that he had executed this deed (Ex. 1) under the pressure of his father but the Additional Subordinate Judge did not accept this evidence and held that the said land was acquired by the joint family in the name of defendant No. 1. The position thus is that the land on which the house stood belonged to the joint family and the plaintiffs had title to the said land. Learned counsel for the respondents has not contested this finding of the trial Court and this finding must be affirmed.
8. The plaintiffs had alleged in paragraph 6 of their plaint that they and the defendants separated in mess and property long ago but the property in suit was left joint. Plaintiff No. 1 (P. W. 1) deposed about two partitions. The first one was between his father Lalji Sah and uncle Gopal Sah of all the properties excepting the property in suit, garden and tank of village Nonihathwari and the tank of Sugarpahri. The second partition was in the year 1343 BS after the death of his father between himself, defendant No. 1 and defendant No. 2 in equal shares, but the property in suit was left undivided in that partition as well. There is no doubt about the proposition that when a partition is admitted or proved, the presumption is that all the properties were divided and a person alleging that family property in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has to prove his case. Accordingly, the plaintiffs had to prove in the present case that in spite of the first partition or the second partition alleged by them the properly in suit continued to be joint.
The learned Additional Subordinate Judge dealt with the case of the plaintiffs in this respect and observed that no evidence had been led on behalf of the plaintiffs to show that at the time of the alleged partition between his father and uncle or even at the time of the alleged partition between the three brothers (Plaintiff No. 1 and defendants 1 and 2) the suit house was excluded from partition and plaintiff No. 1 was unable to say as to when the said partition between his father and uncle had taken place or whether the same was effected orally or in writing. The evidence of P. W. 1 was not at all up to the mark for proving the case set up by him. P. W. 2 came to depose about the possession of the plaintiffs and defendants in respect of the property in suit. The evidence of the other witnesses (P. Ws. 3, 4, 5 and 6) for the plaintiffs is not at all relevant on the question of partition and leaving the property in suit joint, either in the first partition or in the, second partition. In this state of evidence, the learned Subordinate Judge rightly came to the conclusion that the plaintiffs had failed to prove that the property in suit was left undivided in the partitions alleged by them. Learned counsel for the appellants could not seriously challenge this finding but he commented upon the evidence of the contesting defendants regarding their exclusive title and the allotment of the property in suit to their share by the alleged partition on 5th Bhado 1337 B. S. and assailed the finding of the court below in that respect.
9. The contention of learned counsel for the appellants was that the defendants had failed to prove that there was a partition on 5th Bahdo 1337 Amli. The plaintiffs not having discharged the onus and proved that the property in suit was left joint at the time of the previous partition, their suit should fail on this ground alone. But as learned counsel has placed the evidence adduced on behalf of the defendants and commented upon it, it would be proper to deal with that evidence.
(His Lordship considered some of the defendant's evidence and proceeded).
10. The memorandum of partition filed in this case and referred to in the evidence of defendant No. 1 as X for identification was subsequently impounded and stamp duty was paid on it and then it was marked exhibit D. It is dated 5th Bhado 1337 corresponding to 14th August 1930. It mentions the name of Harihar Sah (defendant No. 1) and describes his share in the land and bari (orchard). It contains the names of various villages and the areas of lands which had fallen to the share of defendant No. 1. The relevant portions as translated in the paper book are as follows:
"In the house of Dumka, Harihar Sah and Sheogovind Sah received half and half share. But Harihar Sah took the pucca house, which was in the share of Sheogobind Sah, towards the payment of debt of the creditor.
The house towards the east acquired by purchase.
May it be known that I have given the house of Dumka which was of my share to Harihar Sah. In lieu of the said house and the house at Noni (blurred), the entire debt of the creditor shall be paid by Harihar Sah. Now I have no right left in the house at Dumka. In the house at Noni acquired by purchase, Harihar Sah has no right and share.
Sd. Sheogobind Sah resident of Noni. By my own pen. . . ."
The various signatures appearing on this document have been marked exhibits D/1 to D/7. The translator has indicated in the passage quoted above that some words in Exhibit D could not be read and he has mentioned the words "blurred", but we have examined the original document (Ex. D), and it appears that the recital therein was that "in lieu of the said house I look the house at Noni". This endorsement was by Sheogobind Sah (defendant No. 2).
11. Learned counsel for the appellants urged that Exhibit D was not admissible in evidence inasmuch as it was not registered and it was hit by the provisions of Section 17(1)(b) of the Indian Registration Act. His contention was that this document purported to create and extinguish title and, as such, it was compulsorily registrable. On the other hand, learned counsel for the respondents submitted that the partition was earlier to the execution of the memorandum of partition (Ex. D) and registration was not at all necessary. Defendant No. 1 was careful to stale in his evidence that partition was effected orally and, thereafter, a memorandum of partition was written. In other words, he meant to say that partition was not effected by this document and it contained only a list of the properties which had been already divided between the parties. A partition of immovable properties between coparceners or co-owners can be made orally and is not required to be in writing; but, if there is an instrument effecting a partition of immovable properties, it comes under Section 17(1)(b) of the Indian Registration Act and is compulsorily registrable under that clause. Partition lists merely recording what had already happened are not registrable.
A similar question arose in Ramjugeshwar v. Gajadhar, ILR 29 Pat 980, and it was held that, if there was a document which itself created or was intended to operate as a declared volition constituting or severing ownership and caused change of legal relation of the properly divided amongst the parties to it, it required registration if the value of the subject-matter of partition was Rs. 100 or upwards. But it was equally clear that a writing which merely stated that there had, in lime past, been a partition and merely contained a statement of fact, it did not require registration. In Nani Bai v. Gita Bai, AIR 1958 SC 706 as well, it was held that a partition might be effected orally, but, if the parties reduced the transaction to a formal document which was intended to be the evidence of the partition, it had the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted by partition, and was, thus, within the mischief of Section 17(1)(b) of the Registration Act. On the other hand, if the document did not evidence any partition by metes and bounds, it did not come within the purview of that section. In the light of the principles laid down in these cases, it has to be ascertained as to whether this document (Ex. D) came within the purview of Section 17(1)(b) of the Registration Act.
This document commences by mentioning the name of defendant No. 1 and then it gives the names of the villages and the areas of lands fallen to his share. Later on, it recites that, in the house of Dumka (the house in suit), Harihar Sah (defendant No. 1) and Sheogobind Sah (defendant No. 2) received half and half shares, but Harihar Sah took the pucca house, which was in the share of Sheogobind Sah, towards the payment of debt of the creditor. It appears that, in the partition, the house in suit was allotted to defendants 1 and 2, each having a half share in it, and, so far as this portion of the document is concerned, it is merely a record of what had already happened. No objection can be taken so far as this recital was concerned and it cannot be held that the division of the house in suit was by this document (Ex. D). This recital further indicates that the plaintiffs had not got any share in this house at the time of the partition on the 14th August 1930. The position, however, with regard to the other recitals to the effect that Sheogobind Sah (defendant No. 2) had given up his title in respect of his half share in this house and conveyed it to Harihar Sah (defendant No. 1) as the latter had agreed to pay the debt may be somewhat different.
Learned counsel for the respondents contended that, even if there was any extinguishment of title and interest of defendant No. 2 and transference of the same to defendant No. 1, the recitals relating to the transfer of the title might not be admissible but the other portion which contained the list of properties allotted to defendant No. 1 was admissible. He further urged that the clause relating to the extinguishment of the title was separable from the other recitals and, in such a case, it could not be held that the entire document was in admissible. In support of this proposition, he referred to Mohd. Qasim v. Mt. Ruqia Begum, AIR 1935 Lah 375, Viziaram Gajapathiraj Bahadur, Raja of Vizianagaram v. Vikramadeo Varma, Maharaja of Jeypore, AIR 1944 Mad 518, Pirozshah Dajibhoi v. Najamai Rustomji, AIR 1947 Bom 464, Shree Ambarnath Mills Corporation, Bombay v. D.B. Godbole, AIR 1957 Bom 119 and Mt. Sindhi v. Mt. Partapo, AIR 1949 East Punj 207. This alternative contention is supported by these decisions and the recitals in this document (Ex. D), so far as they relate to the list of properties already allotted to defendant No. 1, are admissible and they clearly indicate that the plaintiffs had not got any share in the disputed house. Partition was not effected on the basis of this document (Ex. D) and this memorandum, so far as it contains the list of properties, can be looked into and taken into account.
12. Learned counsel for the respondents further contended that the suit of the plaintiffs was barred by limitation. The trial Court has found against the defendants on this point. Issue No. 3 was framed with regard to the limitation of the suit but this issue was answered against the defendant. Learned counsel supported the judgment and the decree of the trial Court on this additional ground of limitation. It appears that Baijnath Marwari and others had obtained a money decree against Harihar Sah (defendant No. 1), and, in execution of that decree they had attached the house which is the subject-matter of partition in the present suit. Sheogobind Sah (defendant No. 2) had filed an application objecting to the attachment and that application was registered as Miscellaneous (Claim) Case No. 13 of 1938, but that case was rejected by the order dated the 4th August 1938 and a certified copy of the said order has been marked Ex. F. That order indicated that Ram Nagina (Plaintiff No. 1) also had preferred a claim case (No. 1 of 1938) in respect of the very same house and his case was rejected on the 10th May 1938. A certified copy of the order dated the 10th May 1938 has not been filed in this case as the records of that case were destroyed.
The contention was that, the application of plaintiff No. 1 under Order XXI, Rule 58 of the Code of Civil Procedure having been rejected on the 10th May 1938, a suit under Order XXI, Rule 63 of the Code ought to have been filed within one year of that order; but no such suit having been filed, the present suit was barred by time. Learned counsel referred to Article 11 of the Indian Limitation Act in this connection. Defendant No. 1 (D. W. 1) deposed that, when the house in suit was sold in the execution case, he had satisfied the decree by paying the decretal amount and, after such satisfaction, the execution case was struck off. Exhibit 2 indicated that the said execution case filed by Baijnath Marwari and others was disposed of on the 5th September 1938, that is, within four months of the order rejecting the claim case. After the satisfaction of the decree, the sale was set aside and the attachment came to an end. In those circumstances, it was not at all necessary to institute a suit under Order XXI, Rule 63 of the Code of Civil Procedure. This view is supported by the decisions in Bamapada Bandopadhya v. Ramnath Mandal, 40 Cal WN 146 and Onkar Prasad v. Dhani Ram, AIR 1930 All 177.
These two decisions were relied upon by this Court as well in Ram Chandra Singh v. Mt. Bibi Khodaijatul Kubra, AIR 1945 Pat 369, and I am of the opinion that the trial court was right in holding that this suit was not barred by limitation. The plaintiffs' case, however, having failed on merits, the court below was right in dismissing their suit.
13. Learned counsel for the respondents made another argument alternatively. He urged that, in any view of the case, the defendants 1, 3 and 4 were in adverse possession of the property in suit and the plaintiffs had lost their title by the lapse of time. He contended that, although the plea of adverse possession was not taken specifically in the written statement, yet all the facts in support of that plea were mentioned in the written statement and evidence was adduced in support of the adverse title. It is not necessary to go into this question in the present appeal in view of the finding that the plaintiffs failed to prove that the property in suit still continued to be joint and the evidence adduced on behalf of the contesting defendants that the property in suit was allotted to their share was reliable.
14. In the result, the appeal is dismissed with costs payable to defendants-respondents 1, 3 and 4.
U.N. Sinha, J.
15. I agree.