Patna High Court
Chandreshwar Singh And Ors. vs Ramchandra Singh And Ors. on 24 August, 1972
Equivalent citations: AIR1973PAT215, AIR 1973 PATNA 215
JUDGMENT B.D. Singh, J.
1. This appeal by defendants 1 to 3 and their descendants has been preferred against the judgment and the decree passed in Title suit No. 29 of 1957, which was instituted by the plaintiff-respondents 1 to 3 on the 21st November, 1957, claiming partition of their one-fourth share in the joint family landed properties mentioned in Schedule A of the plaint and moveable properties, including cash, mentioned in Schedules B, C, D and E thereof. The relationship between the parties will appear from the following genealogical table:--
GANAURI SINGH ___________________________|______________________________ | | | | Dilbharan Singh Hibharan Singh Shibaran Singh Jhari Singh | = Jago Kumri | | | | | Karu Singh (dead) | | = Baso Kumari (D.6) | | | | | Savitri Devi | | __________________________|________ | | | | | Chandreshwar Foujdari Jangli Sing | Singh (D.1) Singh (D.2) (D.3) | ______________________|________ | | | | | | | | | Sita Saran Biral Singh Shyam Sundar | | | Singh (Minor) Singh | | | (D. 7) (D. 8) (Minor) (D. 9) | | | ___________________________|____ | | | | | | | Arjun Singh Mahadeo Singh Mahendra | | (D. 10) (D. 11) Singh (D. 12) | | | ___________|___________ ___________________________|________ | | | | | Bahador Singh Ram Pratap Lakhan Singh Bhagwan Singh Surendra Singh = Pataso (P. 3) Singh alias Jamuna (D. 13) (D. 14) (minor)(D. 15) | | Ramswaroop Singh | =Indra Devi (P. 2) | | | Ramchandra Singh | (P. 1) | _________|__________________________ | | Shyam Sakal Singh Maheshri Singh (D. 4) (D. 5) ___________|_______________________ | | | Rajniti Singh Rajeshwari Singh Nonulal Singh (D. 16) (D. 17) (minor)(D. 18) It may be noticed that in the genealogical table which the plaintiffs gave in their plaint, Jago Kumri widow of Sribaran Singh was not shown.
2. The plaintiffs' case in brief was that Ganauri Singh was the common ancestor of the parties noted in the above genealogical table. He had four sons, namely, Dilbharam Singh, Hibharan Singh, Shibaran Singh and Jhari Singh who were all dead before the institution of the suit. The plaintiffs and defendants 4, 5, 16, 17 and 18 represent the branch of Dilbharan Singh whereas defendant No. 6 (Baso Kumri) is the Widow of Karu Singh, the son of Shibaran Singh who also died before the institution of the suit. Defendants 1 to 3, the appellants to this court and defendants 7 to 15 are the descendants of Jhari Singh while the branch of Hibharan Singh was extinct after his death. According to the plaintiffs, the parties to the suit still constituted a joint Hindu family governed by the Mitakshara School of Hindu Law of which defendant No. 1 was the karta. Since Hibharan Singh and Karu Singh died about 20 years and 25 years ago respectively, the plaintiffs share in the joint family properties was four annas while the share of defendants 4 and 5 was also four annas and the share of defendants 1 to 3 was eight annas. The plaintiffs alleged in the plaint that the Karta of the family, namely, defendant No. 1 was misappropriating the joint family properties and, therefore, they asked the defendants to partition the joint family properties amicably,
3. As many as four written statements were filed in the suit. Out of them one was filed by defendants 1 to 3 on 19th August, 1958. Defendants 1 to 3 further filed additional written statements on 7th February, 1959, 30th June, 1960, 28th July, 1960 and 25th January, 1961. The other written statement was filed by defendant 4 and 5 on 5th January, 1962. Initially, the plaintiffs had not impleaded Baso Kumri as a party to the suit. On her application however, she was impleaded as defendant No. 6 She filed her written statement on 15th April, 1959. The fourth written statement was filed on behalf of minor defendants on 11th November, 1959, through the guardian-ad-litem.
4. Originally the plaintiffs had also not impleaded defendants 19 to 23 in the suit as they were not members of the family. They were merely co-sharers in respect of Jaitpur Lands. However, on the objection raised by defendants 1 to 3 they were impleaded as such.
5. The suit was mainly contested by defendants 1 to 3. They pleaded inter alia that sometime after the survey settlement operation Ganauri Singh died on 3rd of Jeth leaving behind properties detailed in Schedule 1 of the written statement and soon after his death all his four sons separated among themselves in mess, residence, worship, properties and business and became completely separate from one another in the month of Asarh 1322 Fs. (June-July 1915 A. D.) and the joint family properties both moveables and immoveables were partitioned by metes and bounds and lands which were allotted to each brother were fully detailed in Schedule 2 of the written statement. The partition was effected through the intervention of Punches. Four copies of Yadashta (memorandum) known as Akhaotas were prepared. The said Akhaotas were signed by three sons of Ganauri Singh, namely, Shibaran Singh, Hibharan Singh and Jhari Singh. Dilbharan Singh simply put his thumb marks on them as he was illiterate, and Hibharan Singh signed the Akhaotas for Dilbharan Singh. They further pleaded in their written statement that defendant No. 1 was not the Karta of the joint family. Since, according to them, nothing was joint, there was no question of defendant No. 1 being the Karta. After the partition, according to those defendants, all the four sons of Ganauri Singh began to live separately from one another and do their business accordingly. The branch of Dilbharan Singh made several acquisitions of properties after the said separation out of their own separate fund. They purchased Various properties in the name of Ram Pratap Singh alias Jamuna Singh. A list of such properties defendants 1 to 3 have given in Schedule 4 of their written statement. After the alleged partition defendants 1 to 3 also acquired properties in their own names the detail of which is given in Schedule 3 of the written statement. After living separately for sometime Hibharan Singh began to live jointly with Shibaran Singh, Subsequently Hibharan Singh died and after his death his properties came in exclusive possession of Shibaran Singh. Shibaran Singh had great affection and love for defendants 1 to 3. Therefore, he executed a will in respect of his properties on 30th August, 1950 in favour of defendants 1 to 3. Shibaran Singh died in Aswin, 1358 Fs. (1951 A. D.) leaving behind his widow Mossomat Jago Kumri, since deceased, daughters Jagat Kumri, Lago Devi, Janki Devi and Dugo Devi, son's widow Mossamat Baso Kumri and grand-daughter Savitri Devi. According to defendants 1 to 3 Karu Singh alias Ramnandan Singh son of Shibaran Singh died in 1934 much before the death of Hibharan Singh.
6. The case of defendant No. 6 in brief as disclosed in her written statement was that Shibharan Singh died leaving behind his widow Mossomat Jago whose name the plaintiffs had omitted in the genealogical table given in the plaint. She further stated that the statement made by the plaintiffs in paragraph 4 of the plaint regarding the date of death of Karu Singh was not correct. According to her, Karu Singh died sometime in the year 1945; she further pleaded that all the members and descendants of the family of Ganauri Singh were still joint and they were members of the joint Hindu Mitakshara family. However, she pleaded that share claimed by the plaintiffs in paragraph 6 of the plaint was not correct. According to her, after the death of Hibharan Singh only three branches remained and as such, Shibaran Singh was legally entitled to get one-third share in the joint family properties and after the death of his widow Mossomat Jago Kumri, defendant No. 6 became entitled to pet the same one-third share held by the late Shibaran Singh.
7. In the written statement which has been filed on behalf of the minor defendants it is stated, supporting the case of defendants 1 to 3, that the properties were previously partitioned.
8. The case of defendants 4 and 5 in short was that the parties were still joint and there was no partition among the members of the joint family and defendant No. 1 was the Karta of the joint family and these defendants also claimed partition. They have fully supported the caw of the plaintiffs. They also alleged in their written statement that intervenor defendant No. 6 Mossomat Baso Kumri, being related to defendants 1 to 3, was set up by them and she intervened at their instance with ulterior motive.
9. On the various pleadings of the parties as many as ten issues were framed by the Court below, of them four issues are important for the purposes of this appeal and they are--
"No. 5: Is the suit bad for non-joinder of parties?
No. 7: Is the allegation of defendants 1 to 3 regarding previous partition true?
No. 8: When did Karu Singh die?
No. 9: Are the plaintiffs entitled to a decree for partition as claimed?"
On behalf of the contesting parties oral as well as large number of documentary evidence were adduced before the trial Court. Among other documents defendants 1 to 3 also filed three copies of the original memorandum of partition referred to above. The first copy they had filed along with their written statement dated 19th August, 1958, and the other two copies they filed subsequently.
10. After considering the evidence and hearing the parties the court below found that (i) the suit was not bad for non-joinder of parties: (ii) there was no previous partition: (iii) Karu Singh died on the 17th April, 1941: and (iv) the plaintiffs adduced no evidence to show that the joint family of the parties had got any property other than the properties detailed in Schedule A of the plaint. Therefore, the properties mentioned only in Schedule A of the plaint were liable to be partitioned. The plaintiffs and defendants 4 and 5 represented the branch of Dilbharan Singh: defendants 1 to 3 and their descendants represented the branch of Jhari Singh whereas defendant No. 6 represented the branch of Shibaran Singh, since her husband Karu Singh died in the year 1941. Therefore, each set of the said persons representing each of the said three branches of Ganauri Singh got 1/3rd share in the properties mentioned in Schedule A of the plaint. The plaintiffs' share was found to be 1/6th; that of defendants 4 and 5 l/6th; of defendants 1 to 3 1/3rd and of defendant No. 6 1/3rd in the properties mentioned in Schedule A of the plaint. On these findings, the suit was decreed in part in favour of the plaintiffs with costs and an order was passed for preparing a preliminary decree.
11. Learned counsel appearing on behalf of the appellants has assailed the above findings of the learned Court below and contended that the Court below (i) erred in holding that there was no previous partition of the properties mentioned in Schedule A of the plaint; (ii) failed to appreciate the evidence adduced on behalf of the appellants; (iii) erred in laying the burden of onus on the appellants to establish the partition and (iv) in the alternative erred in fixing equal shares in the properties to the three branches of Ganauri Singh. According to them, defendant No. 6 had only right of maintenance.
12. Mr. Lal Narayan Sinha, appearing on behalf of the appellants, raised a preliminary point which has to be considered before the appeal is disposed of on merit He submitted that the plaint suffers from fatal lacuna in not disclosing the course of devolution of interest of Shibaran Singh. According to him a suit for partition cannot be maintained without sixteen annas interest being accounted for and without impleading all the members of the holders of the sixteen annas interest, who are entitled to the share in it. The plaint does not disclose as to when Shibaran Singh died. As mentioned earlier in the genealogical table given by the plaintiffs, they had not shown Jago Kumri, the widow of Shibaran Singh. Admittedly, Shibaran Singh died leaving behind Jago Kumri. The evidence on the point as to when Jago Kumri died is not consistent. According to the plaintiffs and defendants 1 to 3 (appellants) she died before 1956 i.e. before the Hindu Succession Act, 1956, came into force. Although the Court below has not come to a finding as to when Jago Kumri died, since it has fixed a share of defendant No. 6 (Baso Kumri) widow of Karu Singh, as 1/3rd., it has taken it for granted that Jago Kumri died after 1956 when the Hindu Succession Act, 1956, was in operation. Only in that eventuality she could have got 1/3rd share in the joint properties. If Jago Kumri would have died before the Hindu Succession Act came into force, defendant No. 6 would have got only 1/6th share, since in that case her interest would be governed by the Hindu Women's Rights to Property Act (XVII of 1937). He urged that since the court below has assumed that Jago Kumri died after 1956, her daughter-in-law defendant No. 6, Baso Kumri, got 1/3rd share in the joint family properties. According to the Hindu Succession Act, defendant No. 6's daughter, Sivitri Devi, who is alive, was a necessary party to the suit, since Savitri Devi has equal share with her mother, defendant No. 6. The plaintiffs have not impleaded Savitri Devi as a party to the suit. On that ground alone the suit must fail.
13. In order to cure the lacuna during the course of hearing on the 28th June, 1972, an application under Section 151 and Order 1, Rule 10 of the Code of Civil Procedure, hereinafter referred to as 'the Code', was filed on behalf of Savitri Devi. In the petition she mentioned that a question arose in this appeal as to whether the petitioned was a necessary party to the suit for partition and further as to when actually Mr. Jago, widow of Shibaran Singh, died, fOR the reasons best known to the plaintiffs, they did not implead her as a party to the suit She further stated that her mother, Baso Kumri, was a party to the suit and she was impleaded as defendant No. 6 and she is also one of the respondents in this appeal. She further added that her mother had examined herself as D. W. 2 for herself and the petitioner has not to set up any case inconsistent with that set up by her mother. Therefore, she has stated that in the interest of justice and in order to avoid multiplicity of proceedings and any technical defect in the suit the petitioner has filed the petition with a prayer to be impleaded as a party defendant to the suit. She has further stated that in case she is added as a necessary party thereto, she has not to adduce any evidence regarding the date of the death of Mt. Jago inconsistent with the evidence so far led of to be led in future if any opportunity is given to her mother, defendant No. 6. On the same date an application was filed on behalf of Ram Chandra Singh and Mt. Indra Devi, plaintiffs 1 and 2 respectively, stating therein, inter alia, that the plaintiff No. 1 had clearly deposed in the suit that Jago Kumri died in 1954, which fact was not contested in cross-examination and defendant No. 2 also stated in evidence that she died in 1955. Therefore, the plaintiff-petitioners still contend that Savitri Devi had no interest in the properties in dispute. However, in order to cure lacuna in the suit the plaintiff-petitioners have been advised to add Savitri Devi as a party to the suit so as to avoid any future complications.
14. On the 29th June, 1972, on behalf of the defendant-appellants two rejoinders were filed to the petitions filed on behalf of Savitri Devi and the plaintiff-respondents. On the 4th July, 1972, two supplementary affidavits to the aforesaid rejoinders were filed on behalf of the defendant-appellants. In the petitions it is stated that Shri Lal Narayan Sinha appearing for the defendant-appellants pressed for the dismissal of the plaintiffs' suit on two grounds, namely, (1) absence of disclosure of material facts constituting the cause of action for the aforesaid suit, which would entitle the plaintiffs to claim -/4/- annas share in the suit properties and (ii) that according to the case of defendant No. 6, which has been accepted by the trial court, Mt. Jago, widow of Shibaran, died after 1956, that is, after passing of the Hindu Succession Act, 1956 and so the plaintiffs' suit should be dismissed in limine in absence of Savitri Devi, grand-daughter of Mt. Jago, who would be the necessary party to the suit. They further mentioned that on the finding of the trial Court accepting the case of defendant No. 6 on the point, a valuable right had accrued to the defendant-appellants to claim dismissal of the suit on the above ground and they would be deprived of the right by getting Savitri Devi added as party defendant at this stage. Therefore, they prayed that the application of Savitri Devi for being added as party may be dismissed. They also pressed for dismissal of the suit.
15. Reference was made to the provisions contained under Order 7, Rule 1 of the Code, the relevant portion of which provides that the plaint shall contain facts constituting the cause of action and when it arose. In my opinion, the suit shall not fail in the instant case for non-disclosure of material facts constituting the cause of action, which would entitle the plaintiffs to claim four annas share in the suit properties, as the plaintiffs in paragraph 4 of the plaint have already stated:
"That Karoo Singh died in the state of jointness some 25 years ago whereas Hibharan Singh died some 20 years ago without leaving any issue and thus the whole family property came to be jointly owned and possessed by Dilbharan Singh and Jhari Singh."
Whether the suit should fail in absence of Savitri Devi as a party to it depends upon the decision of the fact that she was a necessary party to the suit. This in turn depends upon a finding as to when Jago, widow of Shibaran died.
16. Mr. Balbhadra Prasad Singh, learned Advocate General appearing on behalf of defendant No. 6, contended that Jago died after 1956, by which time the Hindu Succession Act came into force. He referred to the evidence on the point. Baso Kumri, defendant No. 6, who was examined on commission as D. W. 2, stated in her evidence that Jago, her mother-in-law, died 6 or 8 years after the death of her husband, Shibaran. It has been asserted on behalf of defendant No. 6 that Shibaran died sometime in the year 1951. Therefore, she meant that Jago died sometime in 1958-59. Harihar Mahto (D. W. 8), who was examined on behalf of defendants 1 to 3, stated in cross examination that the widow of Shibaran died 7 years ago. This witness was examined on the 25th April, 1962. According to his evidence, Jago died in 1955. Shyam Bujhawan Singh (D. W. 15), examined on behalf of defendants 1 to 3, stated in paragraph 8 of his evidence that the wife of Shibaran died 13 or 14 years ago. She died after Shibaran Singh. Her death took place 6 or 7 years after the death of her husband. This witness was examined on the 4th May, 1962. Thus, it may be seen that according to his one statement Jago died in the year 1948-49 and according to his other statement, she died sometime in 1957-58. Defendant No. 2, who was examined as D. W. 24, stated in paragraph 23 that Jago died in 1362 Fasli, which will correspond to 1955. Plaintiff No. 1, who was examined as P. W. 18, stated in paragraph 2 of his evidence that Shibaran died 13 years ago and that Jago's death took place 8 years ago. This witness was deposing on the 2nd June, 1962. Therefore, according to him, Shibaran died in 1949 whereas Jago died in the year 1954.
17. On the above evidence of the various witnesses it is difficult to hold that Jago died in the year 1956 after the Hindu Succession Act came into force. The evidence of Baso Kumri cannot be accepted in view of the fact that she being defendant No. 8 is highly interested. Besides, there is no cogent evidence that Shibaran died sometime in the year 1951. In Execution case No. 798 of 1947 a petition dated the 12th November, 1947 (Ext. L/2) was filed by defendant No. 1 and others as purchaser-decree-holders. In that application Shibaran is shown as one of the judgment-debtors. In Rent Execution case No. 350 of 1951 as execution petition dated 23rd February, 1951 (Ext. 3/a) was filed by defendant No. 1 and others as decree-holders. Shibaran Singh is not shown as one of the judgment-debtors. Therefore, from Ext. 3/a it appears that Shibaran Singh died before filing of the said petition. It is true that the plaintiff No. 1 and defendant No. 2 are also interested witnesses since both are sailing in the same boat in order to eliminate the share of defendant No. 6. According to their case, as mentioned earlier, she was not at all entitled to any share in the joint family properties. She was entitled only to maintenance. In that view of the matter, even if the evidence of P. W. 18 and D. W. 24 is ignored, there is no reason to discard the evidence of Harihar Mahto (D. W. 8) who stated in his evidence that Jago died in 1955. His evidence further finds support from a documentary evidence, i.e., deed of exchange dated the 22nd June, 1956, (Ex. 11), executed by Garbhu Mahto and others as First party and defendant No. 1 and others as second party. If Jago would have been alive till then, it was incumbent that she also would have been one of the executors among the second party, otherwise the deed of exchange would not have been valid. Therefore, the case of defendant No. 6 that Jago died sometime in 1958-59 cannot be accepted. On the evidence discussed above, I hold that Jago died before 1956; in other words before the Hindu Succession Act came into force. In that view of the matter Savitri Devi is not a necessary party to the suit. It is well established that if non-joinder is only of proper party, as contrasted with necessary party, it can never be in itself fatal to the suit. Vide Jagan Nath v. Jaswant Singh, AIR 1954 SC 210. Therefore, the application filed by Savitri Devi is dismissed. The contention of the appellants that the suit was not maintainable is also not acceptable. I hold that the suit even in the absence of Savitri Devi was maintainable.
18. It is true that after it is held that Jago died before the Hindu Succession Act came into force, the finding of the trial court with regard to the share of defendant No. 6 in the joint family properties cannot be sustained. As indicated earlier, her share will be 1/6th in the joint family properties provided it is found that her husband Kara died after the Hindu Women's Rights to Property Act, 1937, came into force. It may be recalled that the court below has found that Kara died on the 17th June, 1941, which has also been challenged by the appellants. Learned counsel appearing on behalf of the appellants drew our attention to paragraph 4 of the plaint wherein the plaintiffs' case is that Kara Singh died in a state of jointness about 25 years ago. The plaint was filed on the 21st December, 1957. Therefore, according to the plaintiffs, Kara died in the year 1932. In paragraph 12 of the written statement filed on behalf of defendants 1 to 3 on the 19th August, 1958, there is similar statement with regard to the death of Kara. On the other hand, in paragraphs 5 and 8 of the written statement filed on the 15th April, 1959, defendant No. 6 stated that Kara Singh, her husband, died about 14 years ago, that is, in the year 1945. Learned counsel for the appellants referred to the evidence of Pyare Singh (D. W. 34), who was examined on the 21st May, 1962, on behalf of defendant No. 6. In paragraph 22 of his evidence he stated that Kara Singh died 20 or 21 years ago, which would correspond to 1941-42. Learned counsel referred to his evidence in paragraph 3 wherein he stated that he could not say in which year Kara died. He died after the last great earth-quake. He could not say how many years after it he died. He also stated that he had never been to Ramdiri. Learned counsel contended that in view of his above assertion in paragraph 3 his evidence on the point of death of Karu should not be relied upon.
19. Hirdi Singh (D. W. 36) examined on the 22nd, May. 1962, on behalf of defendant No. 6, stated in paragraph 1 that Karu Singh died at Ramdiri about 20 or 21 years ago, which would work out to be 1941 or 1942. In paragraphs 4 and 9 he stated that he could not say which persons died at Ramdiri about 20 or 21 years prior. He also could not say in which year Karu died. He did not attend his cremation ceremony. Learned Counsel contended that his evidence also was not worthy of reliance. He drew our attention to the evidence of Shyam Sunder Prasad Singh (D. W. 37), examined on the 23rd May, 1962, on behalf of defendant No. 6. He stated in para. 1 that Kara Singh died in his hosh about 20 or 21 years age at Ramdiri. His sradh was performed at Toi and he attended it as a Gotia. His age was estimated by the Court below at 25 years whereas he stated his age as 31 years. It was, therefore, submitted that when Kara died, the witness might have been either 4 or 10 years of age and as such he was not competent to depose with regard to the death of Kara. In paragraph 2 the witness stated that he could not give the year of his death.
20. Baso Kumri (D. W. 2), defendant No. 6 as mentioned earlier, was examined on commission on the 26th May, 1962. She stated in her evidence that Kara Singh was her husband. He died 20 to 21 years ago, which would correspond to 1941 or 1942. She further stated that Karu Singh died in village Ramdiri at the house of her father, Anup Singh. She performed his funeral ceremony. His sradh was performed at Toi. Learned counsel submitted that her evidence was inconsistent with her pleading in the written statement wherein she specifically stated that Kara Singh died in the year 1945, and accordingly, her evidence was not worthy of reliance, and also because, she being defendant herself was highly interested.
21. Another evidence on the point is that of Subalal Singh (D. W. 40), who was examined on the 24th May, 1962, on behalf of defendant No. 6. He stated in his evidence that he knew Anup Singh of Ramdiri, who was his Gotia. He also knew Karu Singh, son-in-law of Anup Singh, Kara Singh died at Ramdiri at the house of Anup Singh about 20 or 21 years ago. His Mukhagni ceremony was performed by his widow at Ramdiri in his presence. Learned counsel submitted that his evidence was inconsistent with the evidence of Baso Kumri, who stated that she had performed the funeral ceremony (agni sanskar) at Toi. In my view, the comment was not legitimate. She simply stated that she had performed his funeral ceremony. She did not state that the Agni Sanskar was done at Toi. She stated that sradh was performed at Toi. Therefore, it is quite possible that the agni sanskar was done at Ramdiri whereas Sradh ceremony was performed at Toi by his widow. The witness emphatically denied a suggestion put on behalf of the plaintiffs that Kara Singh died 28 or 29 years ago at Toi. He also denied the suggestion put to him on behalf of defendants 1 to 3 that Karu Singh died at Jaitpur. It may be noticed that it was not suggested to defendant No. 6, when she deposed, on behalf of the appellants that Kara Singh did not die at Ramdiri. Learned counsel drew our attention to paragraph 3 of the evidence of D. W. 40 wherein he stated that Karu Singh died either in 1948 or 1949. He further stated that the current year was 1969. He deposed that he did not know either Fasli sal or Sambat or English year. He knew only Hindi year. Learned Counsel submitted that he was giving inconsistent evidence with regard to the year of death of Kara Singh. Therefore, the evidence of this witness also was not worthy of reliance. In my opinion, when he stated 1948 or 1949, he meant 1348 or 1349 Fasli, but by mistake it was so recorded. Therefore, nothing much turns out in favour of the appellants by the above statement. The case of defendant No. 6 with regard to the year of death of her husband Karu also finds support from the evidence of Misri Mistry (D. W. 39), examined on 24th May, 1962. He stated that Kara died about 20 years ago at Ramdiri; his Mukhagni ceremony was performed there and that the witness was the Purohit of Anup Singh. He also supported other witnesses on the point that when Karu Singh died, Anup Singh was residing in Kita Salah, Rosaria of village Ramdiri.
22. Ram Kishun Paswan Chaukidar (D. W. 32) of village Ramdiri was examined on the 18th May, 1962, on behalf of the defendant No. 6. He stated that he knew Kara Singh of village Toi. Anup Singh, was his father-in-law. Kara Singh died 20 or 21 years ago at Ramdiri. He got that fact entered into his fauti bahi (hat-chitha) and reported the matter to Begusarai Police Station. Sometime after the death of Kara Singh his fauti bahi was destroyed by fire. He was working as a chaukidar in village Ramdiri for the last 25 years. According to his evidence, the year of death of Karu Singh comes to 1941 or 1942 and, in my opinion, the place of his death and his identity and relationship with Anup Singh are also fixed. Learned counsel, however, drew our attention to paragraph 3 of his evidence wherein he stated that there were as many as seven chaukidars in village Ramdiri. He was chaukidar of Mobazi Tola of Ramdiri. Ram Saran Paswan was the chaukidar of Kaithawa Tola. D. W. 32 reported to the Thana that Kara Singh of Toi died at Ramdiri in Jaitpur Diara. He further stated that it was not a fact that that Diara was situated in Botaiya Police Station. He further stated that he did not know if Kara Singh died in a dera (house) in Jaitpur Diara. He knew that he died in his Sasural. Jaitpur Diara, where his land situated, was at a distance of one rassi from the house of Anup Singh. He also stated that he had not seen Kara Singh at all. Learned counsel contended that his evidence was not worthy of reliance. Moreover, he was not competent to record with regard to the death of Karu on his hat chitha, as Karu Singh had died not within his jurisdiction. In my opinion, it will be difficult to disbelieve the evidence of D. W. 32 as his evidence finds support from the evidence of D. W. 40, who stated that Anup Singh's house was in Kita Salah Rosaria of village Ramdiri at the time of the death of Karu Singh. It was within the jurisdiction of Begusarai Police Station. Ramkishun was the chaukidar of that kita when Karu Singh died. The fact that D. W. 32 reported to the police station regarding the death of Karu Singh further finds support from the certified copy of the death register (Ext. C-1), which being a public document was admitted without objection by the court below. The name of the dead body is mentioned as Kara Singh, his father's name as Shibaran Singh, place of death being Ramdiri and the name of the informant, as Ram Kishun Dusadh. The date of death is 17-6-1941 and the date of reporting is mentioned as 26-6-1941.
23. It appears from the evidence of D. Ws. 32 and 40 that there are various Tolas in village Ramdiri. According to D. W. 32 Kara Singh died at Ramdiri in Jaitpur Diara whereas according to D. W. 40 he died in Kita Salah Rosaria in village Ramdiri. In my opinion, these are minor discrepancies in evidence, which cannot be taken advantage of by the appellants and that is no reason to disbelieve that Karu Singh died at Ramdiri on the date mentioned in the death register (Ext. C-1). The contention of learned counsel that it was not within the jurisdiction of D. W. 32 to report about the death of Kara Singh is also not of much consequence. It was further commented that the death took place on the 17th June, 1941, whereas it was reported on the 26th June, 1941, about 8 days after the death and that the death register was forged and inadmissible. Reference may be made to Manickchand v. Bhagwan Das, AIR 1964 Pat 353 Where Mahapatra and Tarkeshwar Nath, JJ., while dealing with the question with regard to the entry of birth made in the register, observed at page 355 that it was true that the information was not given within eight days of the birth, but, on that account, it could not be held that the entries were not admissible, inasmuch as those entries could safely come within the purview of Section 35 of the Evidence Act. The birth register was maintained by a public servant in the discharge of his official duty and it could not be ignored. In my opinion, there is no material on the record to establish that the death register (Ext. C-l) was a forged one As against above evidence, which was adduced on behalf of defendant No. 6, the plaintiffs examined Babu Badan Singh (P. W. 4), Akal Singh (P. W. 8) and Ram Chandra Singh (P. W. 18) whereas defendants 1 to 3 examined Harihar Mahto (D. W. 8) and Fauzdari Singh (D. W. 24) in order to establish that Karu died before the 1937 Act came into force. P. W. 4 Was examined on 28-5-1962. He stated in paragraph 3 of his evidence that Karu died 28 or 30 years ago, which would correspond to 1932 or 1934. Similar is the evidence of the other witnesses. On behalf of the plaintiffs and defendants 1 to 3 no documentary evidence was filed. In view of Ext. C-1 discussed above, I find that the evidence adduced on behalf of defendant No. 6 with regard to the year of death of Karu is far superior to those of the plaintiffs and defendants 1 to 3. In my view, therefore the court below his rightly held in paragraph 31 of its judgment that Karu Singh died on the 17th June, 1941, and I find no reason to differ from this finding. It may be stated here that in the last sentence of that paragraph the court below by mistake has written 17-4-41 being the date of death of Karu Singh, instead of 17-6-41.
24. As a consequence of the above finding, the interest of defendant No. 6 in the joint family properties would be governed by the Hindu Women's Rights to Property Ad, as indicated above. Reference may be made to Satrughan Isser v. Sabujpari, AIR 1967 SC 272 where their Lordships had occasion to deal with the rights conferred by the Hindu Women's Rights to Property Act, 1937. Their Lordships observed that the Act seeks to make fundamental changes in the concept of a coparcenary and the rights of members of the family in coparcenary property. The Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of a coparcenary. The interest of the widow arises not by inheritance, nor survivorship, but by statutory substitution. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener; though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenery property.
25. Learned counsel appearing on behalf of the appellants, however, contended that defendant No. 6 was not entitled to get share in the properties even according to the Hindu Women's Rights to Property Act because of a compromise petition exhibit Z, filed in mutation cases Nos. 92 to 96 of 1951-52 dated the 21st July, 1952. In that case Ram Chandra Singh and others were the applicants and Mt. Baso Kumri was the objector. The relevant portion of the petition reads as:
"That names of both the parties in joint-ness with the persons whose names stand registered in register D from before should be registered in register D. Moreover it has also been settled that mosamat has no right to sell or waste property during her lifetime and should she do so, the same will be illegal and wrong. Except to get maintenance, she will not even have any right whatsoever to (transfer) her life interest in favour of any party or to surrender the same in favour of any party. Be it noted that so long as the aforesaid Musammat will live in the joint family, she will be getting maintenance from the joint family and that marriage of the daughter of Musammat will be performed by the joint family in keeping with means and status (of the family)".
The above application was signed by some pleader, whose signature is illegible, for the applicant on the 21st July, 1952. One Anup Singh, Karpardaz of Mt. Baso Kumri, defendant No. 6, also signed on the same date at the request of Anup Singh, father of defendant No. 6. Thereafter is the signature of one A.N. Sinha, Pleader. Shyam Sakal Singh, defendant No. 4, also signed the same.
26. On the basis of the above application it is submitted on behalf of the appellants that since Baso Kumri had surrendered her right, she was not entitled to any share in the joint family properties on partition. Mr. Lal Narain Sinha, learned Counsel appearing on behalf of the appellants, in order to find support to his contention, relied on Mt. Bhagwant Koer v. Dhanukdhari Prasad Singh, AIR 1919 PC 75, wherein it has been observed that a Hindu widow can renounce the estate in favour of the nearest reversioner, and by a voluntary act efface herself from the succession as effectively as if she had been dead. This voluntary self-effacement is sometimes referred to as a surrender, sometimes as a relinquishment or abandonment of her rights, and it may be effected by any process having that effect, provided that there is a bona fide and total renunciation of the widow's right to hold the property. Even where there a no surrender of an acknowledged right, but an admission that the right did not exist and in substance there is a complete self-effacement by the widow which would preclude her from asserting any further claim to the estate, that would amount to a complete relinquishment. In my opinion, the above observation does not lend support to the contention of the learned counsel, as it may be noticed, that in the above application (Ext. L) there is no complete self-effacement of defendant No. 6. It was agreed that her name would be recorded in register D and only her right to sell or waste the same during her lifetime was restricted. It may be noticed that in the aforesaid Privy Council's case it was held that the surrender to be valid must be of whole estate. In the instant case since the surrender was not of the whole estate, it was not valid. In Man Singh v. Maharani Nawlakhbati, ILR 2 Pat 607 = (AIR 1923 Pat 492) Das and Kulwant Sahay, JJ. observed that relinquishment, properly so called, by a Hindu widow, arises when there is renunciation of the world by the widow and abandonment of the estate by her, or some act by which she might in the eye of the law justify the inference that she is civilly dead, and on such relinquishment the heir takes by operation of law. Where two Hindu widows In possession of their deceased husband's estate purported to relinquish the estate to their grandsons by 'an indenture', which provided (i) that the grantees should pay to the widows a sum of Rupees 2000/- for their maintenance, 'befitting their rank and position'; (ii) that the grandsons would defray the expenses of the daily and periodical worship of the family deities at a cost of Rs. 100/- per mensem; (iii) that the maintenance allowance should form a first charge upon certain specific properties belonging to the estate and (iv) that the widows should be entitled to enforce the condition as to debsheva, held, that the transaction was not a relinquishment but a conveyance. Their Lordships held that a relinquishment by a Hindu widow becomes operative only when the widow acts upon it and withdraws herself from the estate. Therefore a relinquishment is not complete so long as the widow retains possession of the estate, and the equitable doctrine of part performance does not apply. On appeal to the Privy Council the above view of their Lordships was approved in that case, as reported in 53 Ind App 11, corresponding to ILR 5 Pat 290 = (AIR 1926 PC 2).
27. In view of the above authoritative decisions, I am emboldened to hold that by Ext. L defendant No. 6 had not surrendered or relinquished her interest. Utmost it was merely a conveyance. It is well settled that the compromise in a mutation proceeding affecting immovable property of the value of one hundred rupees or upward will require registration. In Ramgopal v. Tulshi Ram, AIR 1928 All 641 (FB) their Lordships held that if an oral family arrangement is followed immediately or after an interval by a petition in Court containing a reference to the arrangement, the question whether the reference was merely for the purpose of informing the Court or was dictated by a desire to make formal record of the arrangement to be evidenced by the document, will have to be determined on the facts of each case. In the former case registration is unnecessary. But in the latter case, if the value of the property involved is Rs. 100 or upwards, absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement indicated in the document A similar view was taken by this Court in Lal Mohan v. Onkar Mall, AIR 1946 Pat 55. Das, J., while dealing with the provisions contained under Section 17 (1) (b) of the Registration Act, observed that where in mutation proceeding a bona fide dispute between the parties is composed, each party recognising an antecedent title in the other, and the parties make a petition to the Court informing the terms of the agreement, there is no necessity to have such a petition registered as it does not purport to create, assign, etc. any right in immovable property within the meaning of the aforesaid section; it is merely a recital of fact by which the Court is informed that the parties have come to an arrangement His Lordship further held that whether the family arrangement involved declaration of right or not would depend on the facts of each particular case. If it involved a declaration of right, it would require registration. His Lordship relied on the aforesaid case of the Allahabad High Court. A reference to Ext L clearly indicates that the reference to the Court was not merely for the purpose of informing it. It was for the purpose of making a formal record of the arrangement and it involved declaration of right. Therefore, in my view, it also required registration and in absence thereof it is not admissible. That apart, it may be noticed that Ext L was not signed by defendant No. 6. It was signed by one Anup Singh Karpardaz on her behalf. There is nothing on the record to show that Anup Singh was holding a registered power of attorney on her behalf. Keeping that aspect in view Ext L is of little importance to establish that defendant No. 6 had surrendered or relinquished her interest. Hence, I hold that she is entitled to the share in the joint family properties in accordance with the provisions contained under the Hindu Women's Rights to Property Act, 1937, provided of course it is found that the finding of the Court below that there was no previous partition is correct
28. This brings us to the consideration whether there was previous partition as alleged on behalf of the appellants. There is acute controversy on this point between the parties. Mr. K.K. Sinha, learned counsel for the appellants, following the argument of Mr. Lal Narayan Sinha, emphasised that there was previous partition and the finding of the Court below was against the weight of the evidence adduced on behalf of the parties. On the other hand, Mr. Balbhadra Prasad Singh, learned Advocate-General for defendant No. 6 and Mr. Rama Kant Varma, learned counsel for the plaintiffs, supporting the finding of the Court below on this point urged that the properties sought for partition were joint and there was no previous partition. Mr. K.K. Sinha contended that the Court below preferred the evidence led on behalf of the plaintiffs and defendant No. 6 on this point, to that led on behalf of the defendant-appellants, chiefly because it wrongly maintained that since there was presumption of the jointness, there was heavy onus on the defendant-appellants to establish previous partition. According to learned counsel, on the evidence on the record there was no question of presumption in the instant case, He drew our attention to Article 233 of the Mulla's Hindu Law 13th Edition, where it is mentioned that generally speaking, the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship arid estate. In the absence of proof of division, such is the legal presumption. In other words, given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint. The presumption of union is the greatest in the case of father and sons. The strength of the presumption necessarily varies in every case. The presumption is stronger in the case of brothers than in the case of cousins, and the further one goes from the founder of the family the presumption becomes weaker and weaker. The reason is that brothers are for the most part undivided: second cousins are generally separated and third cousins are for the most part separated. The above proposition of law, in my opinion, does not lend support to the contention of the learned counsel. A reference to the genealogical table given in the earlier part of the judgment shows that plaintiff No. 3 is the wife of the first cousin of defendants 1 to 3. In the case of plaintiffs 1 and 2 the presumption may become weaker but it cannot be said that there is no presumption at all as contended by the learned counsel. The presumption simply becomes weaker in such cases. In Indranarayan v. Roop Narayan, AIR 1971 SC 1962 at p. 1967 their Lordships observed in paragraph 15 that the law presumes that the members of the Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party, who pleads that a member of the family has separated himself from the family, to prove it satisfactorily. In A. Raghvamma v. A. Chenchamma, AIR 1964 SC 136 their Lordships held that the burden is certainly on the person, who sets up partition to prove the said fact. But when evidence has been adduced on both sides the burden of proof ceases to have any practical importance. Therefore, in my view, the court below was right when it held that there was initially onus on the defendants 1 to 3 to establish that there was previous partition. It is also not correct to say that the court below has held that defendants 1 to 3 failed to establish previous partition only because of the legal presumption against them. It has come to the conclusion after considering the entire evidence led by the parties and it was of the view that the evidence led by the plaintiffs on the point of jointness was superior to that led on behalf of defendants 1 to 3. Thus, I have to examine whether there was cogent and reliable evidence of previous partition in the instant case. Mr. K.K. Sinha referred to Exts. X, X/1 and X/2, which are three Akhaotas (memorandum of partition) dated the 5th Asarh, 1352 Fasli, corresponding to the 2nd July, 1915, signed by three sons of Ganauri Singh, namely, Shibaran Singh, Hibharan Singh and Jhari Singh Ganauri Singh's other son Dilbharan Singh simply put his thumb mark on those Akhaotas as he was illiterate and Hibharan Singh signed the Akhaotas for Dilbharan Singh. Mr. Sinha referred to the evidence of Faujdari Singh (D.W. 24), who is defendant "No. 2. Ho has proved Exts. X, X/1 and X/2. He deposed that after the death of his grand father, his father and his three brothers separated among themselves on the 5th of Asarh, 1322 Fasli and divided all their properties at that time. Four copies of yaddast, known as 'Akhaotas', were prepared in proof of the above transaction. The partition was effected through the intervention of panches. The said Akhaotas were signed by the three sons of Ganauri, namely, Shibaran. Hibharan and Jhari. The "panches were Ajodhya Prasad, Parmeshwari Prasad, Ramdhari Singh and Bhuplal Mahto. The Akhaotas were scribed by Karu Gorain. The four panches also put their signatures on the Akhaotas, which were distributed among the four sons of Ganauri and each of them got one Akhaota. He further stated that he had filed three Akhaotas, which had been given to Shibaran, Hibharan and Jhari, which were in his custody. He stated also that after the partition all the four sons of Ganauri began to live separately from one another and they started to do their business separately. After having lived separately for sometime Hibharan began to live jointly with Shibaran. After the death of Hibharan his property came in exclusive possession of Shibaran, who had a great affection for defendants 1 to 3. Shibaran, therefore, executed a will in respect of the property on the 13th August, 1950, in favour of defendants 1 to 3, who used to look after the affairs of Shibaran after his death and that is how copy of Akhaotas of Hibharan and Shibaran also came to the custody of defendants 1 to 3. The relevant portion of the Akhaota reads as hereunder:
"We are four full brothers. Our father Babu Ganauri Singh died on the 3rd Jeth 1322 Fasli and all of us the four brothers entered into possession and occupation of the entire property as heirs. But there have been differences among the four brothers. Hence we thought it proper to be separate from one another. We have privately through panches, equally divided among us all the properties left by our father in the manner that Schedule No. 1 containing Khata and Khasra numbers given herein below is allotted to Babu Dilbarran Singh; Schedule No. 2 containing khata and khasra numbers given herein below is allotted to Babu Sheobaran Singh; Schedule No. 3 containing khata and khasra numbers given hereinbelow is allotted to Hibaran Singh. Similarly Schedule No. 4 containing khata and khasra numbers given hereinbelow is allotted to Babu Jhari Singh. All of us, the four brothers, have entered into possession and occupation of our respective schedules and shares. One brother has ceased to have any concern with the property of his other, brothers. In other words, Dilbaran Singh only has and shall have concern with Schedule No. 1, Sheobaran Singh with Schedule No. 2, Hibaran Singh with Schedule No. 3 and Jhari Singh with Schedule No. 4. Therefore, we have executed this Batwara Akhauta so that it may be of use when required. Be it noted that a copy of this Akhauta is given to each of the four brothers. Batwara of lands among Babu Dilbaran Singh, Babu Sheobaran Singh, Babu Hibaran Singh and Babu Jhari Singh, residents of mauza Toi, pargana Maldah, district Monghyr."
29. A question has arisen whether Akhaotas arc admissible in evidence in absence of registration. According to learned counsel appearing on behalf of the plaintiffs and defendant No. 6, they are not admissible in evidence whereas Mr. K.K. Sinha Vehemently argued that they are admissible. In order to find support to his contention he relied on Panchapagesa Ayyar v. Kalyanasundaram Ayyar, AIR 1957 Mad 472, wherein it was held by Govinda Menon and Ramaswami, JJ. at pages 477 to 478 that a partition of immovable properties between coparceners or co-owners is not required to be in writing at all. But it is a mixture of surrender and conveyance of rights in property and is a transfer of property within the meaning of the Transfer of Property Act. It partly extinguishes a right to the joint property and partly creates a right to it. If the parties elect to reduce the transaction of partition into writing with the intention that the document itself should constitute the sole repository and the only appropriate evidence of the partition and to serve, so to speak, as a document of title, the writing must be regarded as the formal and operative deed of partition and as such requiring registration under Section 17, Clause (b), provided the property affected is of the value of over Rs. 100. It is not the less a partition deed because its terms and contents were previously discussed and decided upon and then alone put into writing. But if the document is drawn up only with the intention of reciting an already completed oral partition and is merely in the minutes or incidental recital of a fait-accompli it is not compulsorily registrable. Their Lordships further held that in construing such documents for the purpose of determining whether or not there is a creation or declaration of a right or title in the sense contemplated by Section 17 of the Act, undue emphasis should not be laid on isolated words and phrases in the document. The Court must read the document as a whole and take a broad view of the circumstances in which and the purpose for which it was written. Looking at the substance of the transaction the Court must arrive at the conclusion one way or the other whether the parties in fact intended the document to be an instrument of partition and the sole evidence of partition and as actually effecting a division of the property. The facts of the case, which their Lordships were considering, in brief, were that four brothers unequivocally expressed to one another that thenceforward they were not going to live in joint status and as a result thereof divided the joint family properties into four more or less equal portions. Then the brothers found themselves in a fix as to how these four portions were to be allotted. At that stage, an arbitrator was appointed and he solved the problem for them by suggesting to them that the first brother should be given the first choice and so forth, until the fourth man had to take what was left. The brothers adopted this suggestion and the lists were formally handed over to the brothers by the arbitrator. The lists did not contain any words showing that they superseded the oral bargain and formally reduced the terms of the partition to the form of a document. Their Lordships observed that those lists had been drawn up with the intention of reciting an already completed oral partition and were not intended by the parties to form an integral and essential part of the process of dividing the properties and to be the only evidence of and to be the formal instrument of partition superseding and embodying the oral bargain and were certainly not intended as the sole repository of the arrangement of partition arrived at by them and constituting the bargain between the parties. Therefore, their Lordships held that the lists did not constitute compulsorily registrable instrument. A similar view was taken in Venkataraju v. Yedukondalu, AIR 1958 Andh Pra 147 where Chandra Reddy and Syed Qumar Hasan, JJ. observed that where a document only evidences a past transaction and clearly denotes that the properties allotted to the four sons by the father were already delivered to them, that it was partitioned as amongst them and that four separate lists were prepared and each of them had taken one before the impugned agreement was thought of, there is no scope for treating it as a document which operated to bring out a division of the properties. It may be that the interval of time between the actual partition and the coming into existence of the agreement is not much, but what is material is that there should be a real dissociation between the transaction and the document, though from the long interval the dissociation may be readily inferred.
30. In Ramnagina Sah v. Harihar Sah, AIR 1966 Pat 179 it was held by U.N. Sinha (now C. J.) and Tarkeshwar Nath, JJ. that the partition lists merely recording what had already happened are not registrable. A document which was unregistered commenced by mentioning the name of defendant No. 1 and then it gave the names of the villages and the areas of lands fallen to his share. Later on, it recited that, in the house in suit defendant No. 1 and defendant No. 2 received half and half shares, but defendant No. 1 took the pucca house which was in the share of the defendant No. 2, towards the payment of debt of the creditor. In the partition, the house in suit was allotted to defendants 1 and 2, each having a half share in it. Their Lordships further held that in absence of registration the recital relating to the transfer of title was not admissible but the other portion, which contained list of properties allotted to defendant No. 1, was admissible. 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 inadmissible, for want of registration. In my opinion, the observations of their Lordships in various cases referred to above do not help the contention of learned counsel for the appellants In the instant case. The, relevant portion of Akhautas, which I have quoted above, clearly indicates that the terms of the partition were formally reproduced in the document and from this it will be clear that the parties to the Akhautas intended it as the sole repository of the arrangement of partition. It contained all that a formal document for partition usually contains.
31. D. W. 14 has stated in his evidence, as mentioned earlier, that after the death of his grand-father, deponent's father and his three brothers separated among themselves on the 5th of Asarh, 1328 Fasli and divided all their properties at that time. Four copies of yaddast, known as 'Akhautas', were prepared in proof of the above transaction. That also shows that the parties elected to reduce the transaction of partition into writing with an intention that the document itself should contain the sole repository and as the appropriate evidence of partition. The four panches were also made to sign the document, which also indicates that the parties intended the document to be not as Yadasht (memorandum of partition) but as a formal document of partition which required registration under Section 17 (b) of the Registration Act, since the subject-matter of partition was admittedly beyond the value of Rs. 100/-. D.W. 24 has also stated in cross-examination in paragraph 38 that there was some quarrel among the four sons of Ganauri even during his lifetime. The Batwara among the said persons started from the 1st Asarh, 1322 Fasli. It came to an end on the 5th of Asarh of that year. Thus, according to this witness, oral partition was completed on the 5th Asarh 1322 Fasli and Akhaotas were also signed on the 5th Asarh, 1322 Fasli. Therefore, practically there is no interval of time between the oral partition and its incidental recital of fait accompli. In other words, in the instant case it is difficult to dissociate between the transaction of partition and Akhaotas. Therefore, Akhaotas, Ext. X series, are in my opinion inadmissible in evidence in absence of registration. It seems that before the learned court below the parties had not addressed regarding in-admissibility or otherwise of the Akhaotas. Therefore, the court below did not apply its mind to that aspect of the question and had wrongly held them as admissible since they had been marked as exhibits.
32. Mr. Sinha then argued that even if those Akhaotas were inadmissible to prove partition by metes and bounds, at least they were admissible to prove the intention of the coparceners to become divided in status. In this connection he drew our attention to Girija Nandan Singh v. Girdhari Singh, AIR 1951 Pat 277, K. Kanna Reddy v. Venkata Reddy, AIR 1965 Andh Pra 274 (FB) and Siromani v. Hemkumar, AIR 1968 SC 1299. In my judgment, those Akhaotas are not even admissible for collateral purposes, namely, for establishing severance of status among the joint family as in the instant case, the court below has not relied on Akhaotas, because it held that the signatures of Shibaran on those Akhaotas were not genuine, Mr. Sinha challenged the finding of the court below regarding the genuineness of the signatures of Shibaran. He referred to the registered sale-deed executed by Ramadhin Singh to Chandeshwar Singh (defendant No. 1), dated the 3rd July, 1937 (Ext. A(42)). On the said sale-deed, Shibaran Singh had put his signature as identifier of the executant, Ramadhin Singh who being illiterate, had put his thumb mark on the document. Shibaran had put his signature also as a witness on the said document. Hence, his signatures there are at five places, which were marked as Exts. B (2) and B (6) to B (9). The aforesaid signatures of Shibaran are admitted to be his genuine signatures. Ramlakhan Prasad Singh (D.W. 14), who was examined on behalf of defendants 1 to 3, told in his evidence that he knew the writing of Hibharan and Shibaran. The Akhaotas contained their signatures, which were marked Exts. F to F (3). The signature of Shibaran was marked as Ext. F (3); whereas those of Hibharan were marked Exts. F (1) and F (2), as it may be recalled, Hibharan had also signed for Dilbharan, Who had put only his thumb mark, being illiterate. Since the plaintiffs have challenged the genuineness of the signature of Shibaran (Ext. F (3)) on the Akhaotas, the same was examined by Bishwanath Ojha (D.W. 19), a handwriting expert on behalf of defendants 1 to 3 with the admitted signatures of Shibaran (Exts. B (2) and B (6) to B (9)) on the registered sale-deed, Ext. A (42). He deposed that he was a retired police officer with the qualification of handwriting and finger prints expert. He had received training in those subjects in the State of Bihar, C.I.D. Branch, Patna. He was practising as such since 1959 after his retirement as an Inspector of Police. He stated that the photographic enlargement of Ext. F (3) he had marked X for identification. The photographic enlargements of the signatures of Shibaran (Exts. B (2) and B (6) to B (9)) were marked as Y to Y (4) for identification. The witness said that after due tests and scientific examination, he was of a definite opinion that writings on the photographic enlargement marked X by him Were identical with the specimen writings marked Y to Y (4), and they were the products of the same hand of the same writer. He also proved his report marked Ext. K. In his evidence, he also stated the grounds for holding such opinion. Learned counsel referred to some of the grounds Wherein he stated that the pen position and the pen holds of both sets of writings were identical. Further, the pen pressures and the shadings, speed, spacing alignment etc. including the inner characteristics and the strokes of the letters were all identical. The witness stated that there were some natural variations in writings, which are bound to occur in all the genuine writings. On the basis of the evidence of D.W. 19, learned counsel for the appellants submitted that it was clearly established that Ext. F (3) was written by the same persons, who had written Exts. B (2) and B (6) to B (9).
33. In order to counteract the evidence of D.W. 19, the plaintiff also examined a handwriting expert. S.M. Raza (P.W. 6). He also compared Ext. F (3) with Exts. B (2), B (7) and B (9). Exts. 6, 6 (a) to 6 (e) are the photographic enlargements of the disputed signatures as well as the admitted signatures of Shibaran, Exts. F (3), B (2) and B (6) to B (9). He also submitted his report (Ext. B). P.W. 6 stated in his evidence that he was the handwriting and finger prints expert and he was practising since 1937. He got his training under late S.N. Ghose, Government handwriting expert of C.I.D., Bihar. He stated in his evidence that he along with his junior compared the photo of the signature Ext. F (3) on partition paper marked 'A' by him with the photos of the standard signatures of Shibaran, Exts. B (7), B (9) and B (2) which he marked Z, Z (1) and Z (2). In his opinion, the signature marked 'A' by him was not written by one and the same person who wrote the signatures marked Z, Z (1) and Z (2), as they did not agree in the characteristics of impulse action, speed, pen pressure, pen strokes, penhold movements, spacing and line qualities etc. and did not reveal the same standard of pen-manship. He gave detailed reasons in his evidence for holding such opinion. One of those reasons he stated was that he did find pen pause, pen lifts, tremors and retouching in the signature marked 'A', which are inherent signs of forgery. Learned counsel referred to his evidence in cross-examination in paragraph 3 wherein he stated that there were, no doubt, same pen pause and pen lifts in the standard writing also. In paragraph 4, he further stated that he had compared the disputed writing only with 3 out of 5 standard writings given to him, because he considered that sufficient to come to a correct conclusion even by adopting that course. On the basis of these statements in cross-examination, learned counsel urged that the evidence of this witness was not, in any way, superior to that of D.W. 19. Moreover, P.W. 6, in cross-examination had admitted that there were same pen lifts in the standard writings also. In my opinion, that is no ground for discrediting his report and his opinion, as in paragraph 3 he also mentioned that in standard writing also some Den pause and pen lifts were natural and there was no retouching in the writings marked Z to Z (2) by him.
34. Mr. Sinha submitted that since there was difference between the two hand-Writing experts, the court below ought to have sent the matter to some other independent handwriting expert having no concern with either party, instead of himself acting as an expert and coming to the conclusion that the signature of Shibaran (Ext. F (3)) on the Akhaotas was forged. In my opinion, the comment of learned counsel is not justified. In Ishwari Prasad Mishra v. Mohammad Isa, AIR 1963 SC 1728 while dealing with the provision of Section 45 of the Evidence Act, it was observed that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. Similar view was taken in Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 where their Lordships observed that the writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to make the comparison of handwritings on a scientific basis. A third method is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. Both under Section 45 and Section 47, the evidence is an opinion, in the former by a scientific comparison, and in the latter, on the basis of familiarity resulting from frequent observations and experience. In either case, the court must satisfy itself by such means as are open that the opinion may be acted upon. Where an expert's opinion is given, the court must come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness. The Supreme Court in an appeal also is entitled to call for the writings for making a comparison thereof.
35. In the present case defendant No. 2, who was examined as D.W. 24, had stated in his evidence that all the Panches, who had signed as witnesses on the Akhaotas, and the scribe thereof, were dead. Therefore, their evidence is not available to throw some light on the genuineness of the signatures of Shibaran. In order to satisfy myself I have perused Shibaran's admitted signatures, Exts. B series on Ext. A (42), as well as his disputed signature, Ext. F (5), on the Akhaota, Shibaran had put his signatures on Ext. A (42) on the 3rd July, 1937, identifying the thumb mark of Ramadhin Singh in Kaithi Hindi, then prevalent in that locality. Ext. B (9) reads thus:
^^x lhooj.kflag eksdhj uhlkuh cukis ok- [kkl** Ext. B (7) reads thus:
^^x lhooj.kflag eksdhj uhlkuh esjs lkeus cuk;s ok- [kkl** His above two signatures and endorsements therein clearly indicate that in the year 1937 he was not in a position to write those words correctly and that he had very little knowledge about Kaithi script and Hindi language. The alleged signature, Ext. F (5) on Ext. X (1), Akhaota dated the 5th Asarh, 1322 Fasli, corresponding to the 2nd July, 1915, reads:
^^l %& lhooj.kflag v[k Here Shibaran Singh displays perfect knowledge of Kaithi script and Hindi language and he has written them correctly also. If the signature and endorsement of Shibaran, Ext. F (3) were held to be genuine, there is no earthly reason to show why he would put his signatures and endorsements, Exts. B (7) and B (9), referred to above, so incorrectly displaying practically very little knowledge of Kaithi script and Hindi words in 1937, when he could have written that language so correctly in the year 1915. It it expected that a person's writing and knowledge with regard to the language shall improve with the lapse of time but here it is just reverse. On that ground alone it can safely be held that Ext. F (3) is not written by the same person who had written Exts. B (7) and B (9). That apart, on comparison of the admitted signatures, Exts. B series, with the disputed signature, Ext. F (3), even with naked eye without the aid of their enlarged photographs, I find that in Exts. B series there are frequent pen pauses, pen lifts and tremors and retouching, which are practically absent in Ext. F (3). Therefore, I have no hesitation in holding that the court below was right in its finding that Ext. F (3) was forged.
36. Mr. Sinha, however, submitted that even if it is held that the signature of Shibaran, Ext F (3) on the Akhaota was forged, the signatures of the other co-sharers have not been found to be forged. Therefore, so far as they are concerned, their status in the joint family properties ought to be deemed as severed. In my opinion, this submission of learned counsel cannot be accepted. If the signature of Shibaran, one of the co-sharers, is found to be forged, the entire Akhaota is tainted and polluted. It cannot be used for any purpose at all. It has to be completely ignored.
37. I now turn to consider what other evidence on the record is available for holding whether there was previous partition or not. It is firmly established that a partition may be oral. There may not be any document to establish the same. On the point that there was oral partition among the members of the joint family on the 5th Asarh, 1322 Fasli. I have already referred to the evidence of defendant No. 2, who was examined as D.W. 24. Besides him D.Ws. 4, 5, 6, 8, 10, 11. 15 and 17 were examined on behalf of defendants 1 to 3, who have stated in their evidence that there was partition between the sons of Ganauri and they were living separately and dealing separate transactions. On the other hand, cm behalf of the plaintiffs, apart from Ram Chandra Singh, plaintiff No. 1, who was examined as P.W. 19, several witnesses were examined to support the case of the plaintiffs that the parties were still joint and there was no previous partition. Those witnesses are P.Ws. 1, 4, 7 to 10, 14, 16 and 17. P.W. 18 categorically stated in his evidence that the plaintiffs and defendants 1 to 6. besides their descendants, are members of a Joint Hindu family. Defendant No. 1, Chandreshwar Singh is the karta of his family. All the lands sought to be partitioned are in joint cultivation belonging to the Joint family. The joint family had also joint business. They were Joint in mess till one month after the institution of the suit. Later on, when defendants 1 to 5 learnt about the institution of the suit, tension accrued among the parties as a result of which they separated in mess. The plaintiffs' case regarding jointness also finds support from the evidence of defendant No. 6. Baso Kumari, who was examined on commission as D.W. 2 and for the sake of convenience she is referred in the judgment of the lower Court as D.W. 42. Apart from her. there were four witnesses examined on her behalf, namely, D.Ws. 33, 34, 36 and 37, who have stated in their evidence that the parties were joint and that there was no previous partition.
38. In my opinion, on the oral evidence of the witnesses, referred to above it is difficult to come to the conclusion one way or the other. Whether there wag previous partition or not will largely depend upon the examination of various other documentary evidence filed by the parties. In Harkishan Singh v. Pratap Singh (AIR 1938 PC 189) it was observed at page 190 that "it is by no means a rare thing that a person makes a statement that he is a member of a joint family with his relative, but has reasons of his own for making that statement. It is not his statement, but his actings and dealings with the estate, which furnish a true guide to the determination of the question of the jointness or otherwise............"
39. Learned counsel for the appellants contended that on behalf of the appellants various documents, like sale deeds, mortgage deeds, deeds of exchange, rent receipts, chaukidari receipts were filed in order to show that after oral partition they were dealing the properties separately and those documents furnish correct guide to hold that there was previous partition. Firstly, he referred to various sale deeds executed after the alleged date of oral partition in favour of different members of the family, who were at one time joint. Ext. A (27) is the sale deed dated the 9th August, 1917, executed by Tori Nonia and another in favour of Ram Prasad Singh alias Jamuna Prasad Singh, father of defendants 4 and 5. Ext. A (19) is the sale deed dated the 21st June. 1919, executed by Pratap Singh in favour of Jhari Singh, father of defendants 1 to 3. After the said sale deed in favour of Jhari Singh various rent receipts were granted to him by the landlords with regard to the said Piece of land acquired through that sale. Those rent receipts are Exts. G(25) to G (32). Ext. A (23) is another sale deed dated the 14th October 1919 executed by Dund Bahadur Singh and others in favour of Bahadur Singh. Ram Pratap Singh sons of Dilbharan Singh, Shibaran Singh, Hibaran Singh and Jhari Singh. He referred to Ext. 2 (3) to show that after the said purchase there was relevant entry in Register D. In my opinion, these exhibits do not assist the contention of learned counsel for the appellants as it is firmly established that separate acquisitions by separate coparceners of a joint Mitakshra family are not evidence of separation and are perfectly consistent with the joint-ness of the family. - Vide Shyamlal Roy v. Madhusudan Roy (AIR 1959 Cal. 380) and Smt. Savitri Devi v. Jiwan Choudhary (AIR 1956 Pat 548). That apart, Ext. A (23) on the contrary goes against the contention advanced on behalf of the appellants as obviously the land under the exhibit was acquired in the names of the persons representing four branches, which could not have been ordinarily if there would have been an oral partition on the Asarh 1322 Fasli. Similarly. I find that by Ext. A (2) a registered sale deed dated the 5th November, 1932 was executed by one Bachu Prasad Singh in favour of Fauzdari Singh (defendent No. 1) and Ramchandra Singh (Plaintiff No. 1). If really the partition had taken place in the year 1915, as contended by the appellants, it was not expected that the separate members of the family would make a joint purchase. Learned counsel is also not justified in laying too much emphasis upon the village papers, namely rent receipts and the entry in Register D in order to show separation among the members of the joint family. In M. Bhagwani Kunwar v. Mohan Singh (AIR 1925 PC 132) their Lordships observed that a definition of shares in revenue and village papers by itself affords a very slight indication of an actual separation in a Hindu family, and is insufficient to prove, contrary to the presumption of law that the family to which the entries refer had separated. The Collector's book is kept for purposes of revenue and not for purpose of title.
40. Mr. Sinha then drew our attention to another sale deed (Ext. A (20)) dated the 20th May, 1950, executed by Khupsurto Kuari in favour of Jhari Singh, regarding a piece of land bearing survey plot No. 1687. Learned counsel painted out that in the sale deed aforesaid while describing the boundary of the land under sale on the north was said to be the land of the vendee, that is of Jhari Singh, bearing plot No. 1668, and towards south it was also shown the land of the vendee bearing plot. No. 1681. According to Mr. Sinha, the land in plot No. 1681 by oral partition was given to Jhari Singh. Therefore towards south it was shown as the land of Jhari Singh, the fact that the land bearing plot No. 1681 was given to Jhari Singh in oral partition is mentioned in the schedule attached to the written statement filed on behalf of defendants 1 to 3. The submission of the learned counsel is not correct. Schedule No. 1 of the written statement shows that 1 decimal of land bearing plot No. 1681 was allotted to Dilbaran, I decimal in the said plot was allotted to Shibaran. 1 1/2 dec. therein was allotted to Hibaran Singh and 1 1/2 dec. was allotted to Jhari Singh. It is true that 2 dec. of land in plot No. 1636 was shown to be allotted to Jhari Singh, but, in my opinion, the said recital in the boundary of the sale deed is not even admissible. Reference may be made to Soney Lall Sha v. Darbdeo Narain Singh (AIR 1935 Pat 167) (FB) where it was held that statements of of boundaries in documents in title between third parties are not admissible Under Section 22 (3). Such a statement cannot be said to be necessarily and prima facie against the proprietary interest of person making it; nor it can be said to be a statement made by the person in the ordinary course of business as required under Section S3 (2) of the Evidence Act.
41. Mr. Sinha further referred to the sale deed dated the 6th June. 1922 Ext. A (28), executed by Ramtahal Singh and another in favour of Lachu Kahar and Ramsakal Singh (defendant No. 4) with regard to the piece of land in plot No. 3367. Learned counsel submitted that by mistake in the sale deed plot No. 3367 was mentioned instead of plot No. 2367, which, according to him, is evident from the additional written statement filed by defendants 1 to 3 on the 30th June. 1960. By the said sale deed only 5 dhurs of land were acquired by defendant No. 4 while describing the boundary of the subject matter of sale towards east the land of Jhari Singh is shown. Learned counsel urged that in the instant case since the recital is not between the third party, it will be admissible according to the Full Bench judgment of this court referred to above as obviously the sale deed was in favour of Ramsakal Singh, defendant No. 4. In my opinion, the said recital though admissible is not of any assistance to the contention advanced as the learned counsel has failed to point out as to which of the plots of Jhari Singh was towards east with reference to the survey map. Therefore, it does not carry any weight.
42. Mr. Sinha also referred to another sale deed, Ext. A (22) dated the 15th February. 1923, executed by Sauki Sahu in favour of Jhari Singh. By the said sale deed some Milkiyat interest as well as bakasht lands were sold to him bearing tauzi No. 7665. The name of Jhari Sigh was recorded in register D with regard to Milkiyat interest vide Ext. 2 (6) and after the death of Jhari the names of his sons, namely defendants 1 to 3, were substituted in register D. According to learned counsel, this also is a clear sign that among the members of the family they were acquiring properties-both Milkiyat as well as bakasht lands separately out of their own fund, so much so that the plaintiffs have not claimed partition of the land or the Milkiyat interest, which is the subject matter of this sale deed. Mr. Sinha drew our attention to the evidence of plaintiff No. 1 (P. W. 18) who stated that he did not know tauzi No. 7665 nor had he claimed any interest in it in the suit. He did not know if the tauzi had been purchased by Jhari Singh and his name was entered in register D and after his death the names of defendants 1 to 3 were mutated in register D. In my opinion, since it was not included as a subject matter of partition in the suit, it cannot be inferred that there was previous partition with regard to the various properties, which were included as the subject matter of the partition in the suit. Obviously, according to the evidence referred to above, the plaintiff was not aware about the said tauzi number. Therefore, due to lack of knowledge that was not included for partition. I have already discussed above that the acquisition of the properties in the names of different members of the Mitakshra joint family has not been held to be inconsistent with the theory of jointness.
43. Mr. Sinha then referred to a sale deed dated the 18th September, 1940, Ext. A (38), executed by Gaya Singh and another, in favour of Jamuna Prasad Singh, father of defendants 4 and 5. In the said sale deed there is a recital that certain money was kept in reserve for payment to Shibaran Singh. Jhari Singh and Chandreshwar Singh son of Jhari Singh, being mortgagees under Exts. O(4), O(5) and O(6) respectively. Mr. Sinha submitted that since the mortgage money with regard to the three mortgagees was kept in reserve for payment to Shibaran Singh. Jhari Singh and Chandreshwar Singh (defendant No. 1) that shows that there was separation among the members of the joint family. If they would have been joint the mortgage money would have been set off with the consideration of sale, as it was done in the case of sale deed dated the 14th April, 1921, Ext. A (15). executed by Khiran Jamadar in favour of Jhari Singh. He also referred to Ext. A (24), which is a sale deed dated the 18th September. 1940, executed by Barho Singh and another in favour of Jamuna Prasad Singh, father of defendants 4 and 5. In this case the executants had taken money from Chandreshwar Singh. defendant No. 1, on a handnote. Therefore, the recital in the sale deed is that after having got the payment endorsed on the back of the handnote by Chandreshwar Singh and after tearing off the stamp pasted on the top the executants took back the handnote and he allowed it to remain in the custody of the said vendee as a proof of the payment of the consideration money. In this connection he also drew our attention to another sale deed, Ext A (13) executed by Jai Mangal Singh and another in favour of Chandreshwar Singh, defendant No. 1, dated the 30th May, 1944. In this case out of consideration money some amount was left with the vendee, defendant No. 1, to pay off Shibaran Singh in respect of the unregistered simple mortgage bond for sale. Learned counsel referred to the evidence of D. W. 24, who stated in paragraph 14 that defendants 1 to 3 had purchased about one bigha of land on the basis of the sale deed, Ext. A (13) from Jaimangal Singh in the name of Chandreshwar Singh. There was a sudbharna from before with regard to the above land in the name of Shibran Singh. Chandreshwar Singh, got back the sudbharna deed on return of the consideration to Shibaran Singh. Ext. B (1) is the endorsement of Shibaran Singh, who made it in presence of the deponent. Sudbharna was also filed in court, which was marked 'Y' for identification,
44. In my opinion, from these documents it is difficult to infer that there was separation among the members of the joint family. Reference may be made to Mt. Sundari Kuari v. Nakat Singh (1966) ILR 45 Pat 314). In that case also one of the disputes between the parties was with regard to the previous partition. The case of the plaintiffs was that there was joint family whereas the case of the defendants was that there was previous partition. The court below in that case had dismissed the suit of the plaintiffs on the ground that there was previous partition. The plaintiffs filed an appeal against the judgment and decree of the court below in this court. In that case also various sale deeds were filed on behalf of the defendants to show that there was recital in the sale deed for reserving a part of the consideration money with the vendee to pay off the mortgage dues. The appeal was placed before Mahapatra and G.N. Prasad. JJ. Learned counsel for the defendant-respondents out of various sale deeds had referred to the recital in Exts. C (7) and C (9) which stood in the name of defendant No. 2, Lachmi Singh, wherein it was stated that a part of the consideration was left with the vendee for redemption of a usufructuary mortgage executed by the vendors in favour of Aklu Singh alias Lukho Singh. Learned counsel had argued before their Lordships that, that could not have been consistent with a joint family. Mahapatra. J., who delivered the judgment for the court, observed that he did not think so, as it was not uncommon that separate transactions of the family are done in the name of its individual members.
45. Mr. Sinha also drew our attention to Ext. A (40), which was executed by Sukhu Singh and another in favour of Jamuna Prasad Singh, father of defendants 4 and 5, on the 3rd August. 1935. By this sale deed 5 decimals of rent free homestead land on which one Kita mud built house was sold. Learned counsel has laid emphasis on the boundary mentioned in the sale deed. Towards the south it is shown as the land of Shibaran Singh and on the east it is shown as the house of Shibaran Singh. In my opinion, this recital of the boundary, as observed earlier, will not be admissible in evidence, as the statement of boundary is in the sale deed executed by a third party. Moreover, it is well established that separate residence by the members of the family is not inconsistent with the theory of jointness, therefore, nothing turns upon Ext. A (40).
46. Mr. Sinha then referred to the sale deed. Ext. A (37) dated the 17th February, 1944, executed by Budhu Singh in favour of Chandreshwar Singh, defendant No. 1. D. W. 24 stated in his evidence that there were three sudbharna deeds from before in respect of the land purchased under Ext. A (37), in favour of Shibaran Singh. All those sudbharnas were redeemed by Chandreshwar by means of return of consideration to Shibaran, After redemption two of those sudbharnas. Exts. O (7) and O (8), were retained by the vendee and the third one was made over to Budhu Singh. the vendor. The deponent has further proved the endorsements made by Shibaran Singh. marked Exts. B (3) and B (4), on the sudbharna deeds. Exts. O (7) and O(8). Ramlakhan Prasad (D. W. 14), who was examined on behalf of defendants 1 to 3, stated in his evidence that he knew the writings of Shibaran Singh and that those endorsements, marked Exts. B (3) and B (4) were written by Shibaran Singh. Plaintiff No. 1, who was examined as P. W. 18 stated in his evidence that all the endorsements said to have been made by Shibaran on the back of sudbharna deeds, were forged and that they were not in the pen of Shibaran. No consideration was paid to Shibaran by defendants 1 to 3 after kebalas were taken in their names in respect of the lands covered by the said sudbharna deeds. I am not prepared to accept the evidence of D. Ws. 14 and 24, that Exts. B (3) and B (4) were written by Shibaran Singh. T have already referred to the signature of Shibaran on Ext. A (42), which was on the 3rd July, 1937. While comparing the same with his alleged signature. Ext. F (3) on Ext. X (1). The signatures, Exts. B (7) and B (9) on Ext. A (42), as already mentioned, are the admitted signatures of Shibaran. On comparison of those signatures with the alleged signatures of Shibaran, Exts. B (3) and B (4) it is evident that they were not written by Shibaran and they were not genuine. They appear to have been written by a person who had knowledge of correct words and was familiar with Kaithi language. The hands of the writer also appear to be set. While dealing with the signatures. Exts. B (7) and B (9) I have already held that Shibaran was not in a position to write words correctly and that he had very little knowledge of Kaithi language and his hand was also not set. Besides, the date given on those alleged endorsements. Exts. B (3) and B (4), is 15th Jeth. 1351 Fasli, corresponding roughly to May or June. 1944, whereas in Ext. A (37) the recital is dated the 17th February, 1944. Therefore, the date and the month given on those Exts. B (3) and B(4) are also not correct.
47. Mr. Sinha then drew our attention to a sale deed Ext. A (411 dated the 18th January, 1937. executed by Saukhi Singh and another in favour of Jamuna Prasad Singh, father of defendants 4 and 5. He referred to the boundaries given in the sale deed. Towards the east is shown to be the land of Shibaran Singh. On the basis of the said entry he submitted that if it was joint acquisition by the said sale deed, towards east, it ought to have been shown as the land of 'nil' , that is, of the vendee, as being the member of the joint family. That also, according to him, is indicative of the fact that there was previous partition. This submission of the learned counsel is not acceptable. Learned counsel failed to point out what was the plot number of the land of Shibaran Singh towards east with reference to the survey map. Therefore, nothing of importance turns upon Ext. A (41).
48. Reference was also made to Ext. A (42), the sale deed dated the 3rd July. 1937 to which I have already referred in the earlier part of the judgment while discussing about the genuineness or otherwise of the Akihaotas. Leaned counsel wanted to emphasise that Shibaran Singh would not have been identifier of Ramadhin Singh, the executant of Ext. A (42), if it was meant for joint family acquisition. Under the law, he submitted, a vendee is not entitled to be an identifier. If it was a joint family acquisition, Shibaran would come in the category of a vendee although it was purchased in the name of Chandreshwar Singh. Since Shibaran had signed as an identifier, according to learned counsel, it indicated that it was not a joint family acquisition. In my opinion, this submission of the learned counsel does not hold good. On the face of the document Shibaran Singh was not the purchaser. He was merely an identifier. He simply identified Ramadhin Singh, the executant, before the Registrar. Besides, if such purchases are made out of joint family fund, they are in the nature of benami transactions and in order to retain benami character, colour has to be given accordingly.
49. Mr. Sinha also made reference to Ext. A (44), a sale deed dated the 29th June. 1955, executed by Chandreshwar Singh, defendant No. 1, in favour of Maujie Das and others. In the said sale deed the executant, namely defendant No. 1, asserted that he was in possession and occupation of the vended property without any coparcenership. In my opinion, nothing turns upon this assertion too. If a joint family property is purchased in the name of an individual member of the family and when it is disposed of such an assertion has got to be made. Besides, that assertion is not admissible either, being self serving.
50. It will be relevant to notice that before the alleged date of partition, that is, 5th March. 1322 Fasli', corresponding to the 2nd July, 1915, the joint family used to acquire various properties in the names of different members of the family. Reference may be made to the objection petition dated the 12th February, 1909. Ext. NN, which refers to Khesra No. 2232. The name of the second party is Jhari Singh son of Ganauri Singh and is described as the purchaser of Malik's share. Ext. U (3) is the writ of delivery of possession in Case No. 882 of 1913 dated the 27th June. 1913. One of the decree holders mentioned therein is Jamuna Prasad Singh. This relates to the land of Dhanuki bearing khesra No. 2232. This also clearly indicates that different transactions used to take place in the names of individual members of the joint family at the time even when the properties were admittedly joint.
51. Learned counsel, however, referred to Ext, P. Which is a deed of exchange dated the 23rd August, 1935, by Tribeni Prasad Singh and another to Shibaran Singh and Hibaran Singh. Ext. P (1) is the counter part of the same date executed by Shibaran Singh and Hibaran Singh giving their land in exchange to Tribeni Prasad Singh and another. Mr. Sinha urged that if the properties were joint as alleged by the plaintiffs, then either only the karta of the family would have executed it or the entire members of the family would have executed the same. In that case what was the necessity of Hibaran Singh joining with him in the execution of the deed of exchange. Learned counsel drew our attention that under Ext. P (1) Shibaran and Hibaran had given land bearing plot Nos. 1179 and 1167, which, according to defendants 1 to 3, were allotted to them on oral partition as stated in the schedule given in the written statement. Therefore, both Shibaran and Hibaran had to join in executing the deed of exchange. In my opinion, there is no substance in this submission of learned counsel either. If a land is purchased in the name of one or more members of the joint family, those members alone have to deal with the property concerned while selling it or giving it in exchange. It is possible that those plots were purchased in the names of Shibaran and Hibaran and therefore they had exchanged the same as per Exts. P and P (1) and in order to take advantage of this situation defendants 1 to 3 have shown in the written statement that those plots were allotted to Shibaran and Hibaran on oral partition.
52. Learned counsel then referred to Ext. O (2) dated the 18th August, 1934, a usufructuary mortgage bond by way of conditional sale executed by Prayag Singh and Ramgulam Das in favour of Jamuna Singh and Chandreshwar Singh. In my opinion, this document hardly helps the contention of learned counsel. If there was a partition, the conditional sale would not have taken place in the joint names of the father of defendants 4 and 5 and defendant No. 1. Mr. Sinha further referred to Exts. A, A (4) and A (11). Ext. A is the sale deed executed by Pramod Ban Behari Prasad Singh and another in favour of defendants 1 to 3. By this deed twelve annas share out of sixteen annas proprietary interest including Khudkasht and Bakasht land situated in village Toi bearing tauzi No. 6902, 4456C and 2465B was purchased. In the recital portion it is mention--i ed that the executants stood in need of money for payment of principal debt with interest amounting to Rs. 1382/-, on account of handnote dated the 14th November, 1946. The money was taken by executant No. 1 and it was payable to Shibaran Singh. Ext. A (4) is also of the same date and the parties to this document are the same as in Ext. A. The description of the property vended is the whole and entire sixteen annas proprietary interest, including Khudkasht and Bakasht land in village Toi bearing tauzi No. 9027. Ext. A (11) is also of the same date and the parties thereto are same, The subject matter of sale is a decree obtained by the executants for the arrears of rent against various tenants, including Sato Singh, Learned counsel submitted that twelve annas interest under Ext. A was purchased by defendants 1 to 3 whereas four annas interest belonged to one Ram Prasad from whom Shibaran and Jamuna Prasad Singh had purchased. Four annas interest of Ram Prasad was subject to Thika lease in favour of Beradar Singh-vide Ext. A dated the 8th January, 1912. Shibaran and Jamuna redeemed the same on the 28th Jeth 1336 Fasli which corresponds to May or June, 1929-vide Ext. B. Upon twelve annas proprietor's interest of the said tauzi, the names of defendants 1 to 3 were recorded in register D. whereas the names of Shibaran and Jamuna stood recorded only in respect of four annas interest, till it vested in the State of Bihar under the Land Reforms Act.
53. Ext. EE (1) is the Hukumnama by Nandkeshwar Prasad Singh and others in favour of Chandreshwar Singh dated the 15h Aghan 1347 Fasli corresponding to the 1st December. 1939. The recital of the said Hukumnama. which has been referred to, reads as:
"We perpetually settled with you this Khudkasht land to the extent of our 12 annas share, as raiyati interest ....."
The Hukumnama relates to tauzi No. 6902. In this connection reference was also made to Ext. L (2), which is a petition dated the 12th November. 1947. for execution of rent decree dated the 17th November, 1944, filed by Chandreshwar Prasad Singh and others as decree-holders in Rent Execution Case No. 798 of 1947. Sato Singh and others are shown as judgment-debtors-1st party and Shibaran Singh and others are shown as judgment-debtors-2nd party. This also relates to tauzi No. 6902. In the said petition it is mentioned that at the time the decree was passed. 4 annas share belonged to the judgment-debtors-second party and the same was their share till the date of filing of the execution case. Therefore, a notice under Section 158 of the Bihar Tenancy Act was necessary to be issued and so they were impleaded as judgment debtors-second party. Ext. II is the sale certificate in Execution Case No. 798 of 1947 dated the 1st October. 1948. In the sale certificate it was certified that the decree-holders had purchased at a sale by public auction on the 16th August, 1948, the property specified therein. Learned counsel thereafter referred to Ext. Z (8), a certified copy of Register D bearing tauzi No. 6902, in order to show that 12 annas interest therein in the names of defendants 1 to 3 was recorded in register D. In my opinion, in order to appreciate, the contention of the learned counsel, it will be necessary to refer to Ext. L. which I have mentioned in the earlier part of my judgment. It may be recalled that a compromise petition dated the 21st July, 1952 was filed in mutation cases Nos. 92 to 96 of 1951-52. In the said compromise petition Ram Chandra Singh and others are the applicants 'whereas Mt. Baso Kumri is the objector. The relevant portion of the petition is as follows:--
"That names of both the parties in jointness with the persons whose names stand registered in register D from before should be registered in register D .....Be it noted that so long as the aforesaid Musammat will live in the joint family, she will be getting maintenance from the joint family, and that marriage of the daughter of Musammat will be performed by the joint family in keeping with means and status (of the family)."
The other relevant document is Ext. L (1), which is an application dated the 26th December, 1952, of Ramchandra Singh (Plaintiff No. 1), Shyam Sakal Singh (defendant No. 4) and Maheshwar Singh (defendant No. 5) in mutation case No. 92 of 1951-52. The opposite party therein are Chandreshwar Singh. Fauzdari Singh and Jangli Singh sons of Jhari Singh (defendants 1 to 3). In the said application tauzi No. 6902 is mentioned. In paragraph 1 thereof it is clearly mentioned that till then the plaintiffs and the defendants were the members of the joint family and defendant No. 1 was the karta of the family. The applicants alleged that defendant No. 1 out of ill motive fraudulently filed a forged mutation petition in the name of Ram Chandra Singh, one of the applicants, in mutation case No. 368 of 1929-30 in respect of tauzi No. 6902 and got his (Ram Chandra's) name registered in respect of four annas share out of 16 annas without the knowledge and information of the applicants. Chandreshwar Singh (defendant No. 1) got his name and the names of his full brothers Fauzdari Singh and Jangli Singh recorded in respect of the remaining 12 annas share in Case No. 409 of 1947-48. The applicants further stated therein that they were share-holders of eight annas out of sixteen annas. In other words, four annas share belonged to applicant Ram Chandra Singh and four annas share belonged to Ram Sakal Singh and Maheshwari Singh and the remaining eight annas share belonged to Chandreshwar Singh. Fauzdari Singh and Jangli Singh. The applicants. Jangli Singh. Fauzdari Singh and Chandreshwar Singh are the rightful heirs of Shibaran Singh and Hibaran Singh. In the application it was prayed that the names of the applicants be registered in register D in respect of eight annas share of the said tauzi after making amendment under Section 28 of the Land Registration Act.
54. Keeping in view these Exts. L and L (1) particularly the former. I find that in Ext. 2 (8) the names of plaintiff No. 1, defendants 4, 5 and 6 (Mt. Baso Kumri) and Mt. Jago Kumri widow of Shibaran, and the names of defendants 1 to 3 are entered and in the remark column it is mentioned that the entry is made in accordance with the compromise petition in mutation case No. 92M of 1951. These documents further indicate that the plaintiffs and the contesting defendants were members of the joint family and the properties were joint.
55. Mr. Sinha, however, contended that the recital in paragraph 2 of the petition. Ext. L (1) that defendant No. 1 fraudulently filed a forged mutation case No. 368 of 1929-30 could not be true as Ram Chandra Singh, who examined himself as P.W. 18 on the 1st July, 1962, stated his age as 30 years. Therefore, he could not have been even born in the year 1929 so that his name might have been mutated. As regards Ext. L, he submitted that the said compromise petition was not signed by defendants 1 to 3 nor they had any notice of the mutation cases Nos. 92 to 96 of 1951-52. He referred to the evidence of D.W. 24, who stated in paragraph 32 that the names of the parties were separately recorded in respect of their tauzis. Defendants 4 to 6 got their names fraudulently entered in 1951, or 1952 in respect of tauzi No. 6902 etc. in register D. He got information of that fact about 2 1/2 or 3 years prior to the date of his deposition. Prior to the vesting of the estate under the Land Reforms Act he used to pay revenue and cess in respect of the shares of defendants 1 to 3 relating to tauzi No. 6902 etc. In my opinion, the allegation regarding fraud is vague. It has not been pleaded on behalf of defendants 1 to 3 as to what was the nature of fraud as required under Order 6. Rule 4 of the Code of Civil Procedure. They did not state that the summons or notice were suppressed in the mutation case nor the defendants have filed order sheet of that case to establish that notices were suppressed and they had no knowledge about the mutation case. They have also not filed chalans showing payment of revenue or cess after the aforesaid compromise in the mutation case. No doubt on their behalf Exts. Y to Y (6) showing payment of revenue challans have been filed but they relate only to the period before March. 1952. Rameshwar Ram (D.W. 35). who was examined on behalf of defendant No. 6. stated in his evidence that he was a peon attached to the Monghyr Collectorate. He knew Akhileshwar Singh. peon, of the Collectorate. The deponent was acquainted with his writing. The report of Akhileshwar Singh was. therefore, marked as Ext. A-1. We called for the original report and examined the same in presence of counsel of the parties. It clearly shows that defendants 1 to 3, who were parties to that case, were served with notices. Hence, even if they did not appear, the final order in that case will bind them.
56. Learned counsel then referred to Exts. G series, which are rent receipts. In my opinion, when the acquisition of the properties by themselves in the names of different members of the family are not sufficient to establish partition, these rent receipts are equally of no avail. I have already mentioned in the earlier part of my judgment the observation of their Lordships in AIR 1925 PC 132 (supra) that a definition of shares in revenue and village papers, by itself, affords a very slight indication of actual partition in a Hindu family. Therefore, in my opinion, no useful purpose will be served by dilating upon the various rent receipts.
57. Next he referred to the chaukidari receipts. Exts. D series, in order to show that the various houses of the joint family were partitioned and the different members after partition were living separately and paying separate chaukidari taxes. Learned counsel urged that the plaintiffs have not filed any rebuttal evidence to that of Chaukidari receipts. He submitted that the assessment list for the years 1915-1957 were destroyed under the rules and the assessment lists for the year 1959 was badly eaten up by white ants. Only the assessment list for the years 1958 and 1960 were sent when they were called for. In order to substantiate this contention he referred to the destruction report dated the 5th September, 1962, Ext. S. He also referred to the evidence of D.W. 24, who stated in paragraph 6 that all the four sons of Ganauri Singh began to pay their chaukidari tax separately after partition. After the death of Dilbaran Singh, his son Bahadur Singh began to pay chaukidari tax on behalf of his family. After Bahadur's death, his brother Jamuna alias Ram Pratap began to pay chaukidari tax on his behalf. When Ram Pratap died chaukidari tax was paid on behalf of that family by defendant No. 4. Shyam Sakal Singh. For the last 10 years such tax was being paid separately by Shyam Sakal Singh. Maheshwari Singh and Ram Chandra Singh, who belonged to the branch of Dilbaran Singh. Their mess was separate but their properties were joint.
58. In my view, those dhaukidari receipts. Exts. D series also do not in any way establish previous partition. In this connection reference may be made to the statements of D. W. 24, who is defendant No. 2 himself, in paragraph 7 of his evidence, wherein he said that for the last 9 or 10 years defendants 1 to 3 used to pay chaukidari tax separately though their business and properties were still joint. They clearly show that even if a person may be joint, chaukidari tax can be paid separately as they themselves were doing and that shows the usual conduct of the family in paying separate dhaukidari tax. Reference may be made to AIR 1960 Pat 548 wherein it was held at page 550 that chaukidari receipts are of little weight in determining the question of separation or jointness. Similar view was taken in a Bench decision of this Court in (1966) ILR 45 Pat 314. In that case Exts. G series being chaukidari receipt were filed in order to establish previous partition. Their Lordships at page 317 observed that those documents did not show that. P. W. 18 (plaintiff No. 1) in paragraph 14 stated in his evidence that the chaukidari receipts filed by defendants 1 to 3 were all manufactured documents and they were brought into existence by collusion with the chaukidari assessors and panches. It will not be necessary to deal with the question whether those receipts were forged or not in view of the observation that those receipts are not of any consequence to establish previous partition.
59. The documents dealt with above, filed on behalf of the defendants 1 to 3 were considered relevant, and only they were referred to us by Mr. Sinha. Other documents on the record are not important and, therefore, learned counsel has not referred to them. He, however, contended that various documents discussed above, if taken individually may not be sufficient to establish previous partition, but, if taken collectively, they do so establish. In my view, even if they are so taken they do not prove that there was previous partition. On the contrary, some of them, which I have already referred, are indicative of the fact that the members were still joint.
60. Now I proceed to examine how far the documentary evidence adduced on behalf of the plaintiffs lend support to their case that the properties were joint for which they sought partition. One of the important documents, which have been filed on behalf of the plaintiffs, to establish jointness is Ext. 4 (b) which is a plaint in Mortgage Suit No. 33 of 1927 filed in the Court of Munsif at Jamui in the district of Monghyr on the 1st March. 1927. In that case Shibaran Singh, Hibaran Singh. Jamuna Prasad Singh (father of defendants 4 and 5) Chandreshwar Singh (defendant No. 1). Fauzdar Singh (defendant No. 2). Jangli Narain Singh ("defendant No. 3), as minor, Ramsarup Singh (minor) husband of plaintiff No. 2. Ramnandan Singh minor son of Shibaran Singh and Ram Sakal Singh (defendant No. 4) are the plaintiffs, whereas one Guru Prasad Singh and others are the defendants. The first paragraph thereof reads as:--
"The plaintiffs are the members of a joint family governed by the Mitakshara School of Hindu Law and the mess and business and residence of all the plaintiffs are joint and the plaintiff No. 1 is the head member and Karta of the family and Jhari Singh, the brother of the plaintiff No. 1 died in state of jointness leaving behind the plaintiffs".
This exhibit is proved by Kesho Prasad (P.W. 3). a pleader's clerk. He stated in his evidence that he was acquainted with the writing of Kameshwar Prasad, Muharrir, who scribed the plaint. The plaint, excluding initial put on it was marked as Ext. 4 (b). The deponent, however, staled in cross examination that he could not say if the contents of Ext. 4 (b) were correct or incorrect. On the basis of his evidence Mr. Sinha contended that it did not prove the signatures of defendants 1 and 2 nor the signature of Shibaran who signed as guardian on behalf of defendant No. 3, the latter being minor. According to learned counsel, defendants 1 to 3 did not join the institution of the suit though it appears that the suit was also filed in their names. The plaintiffs have not proved the Vakalatnama filed on behalf of defendants 1 to 3.
61. In this connection he referred to the evidence of D.W. 24. In paragraph 19 he stated that he had not filed mortgage suit against any Gur Prasad Singh. His father had advanced loans to Gur Prasad Singh on the basis of simple mortgage deed and a hand note. Both of them were destroyed by fire. Later on Jamuna Singh fraudulently filed a suit against Gur Prasad Singh on the basis of the said dues. The signatures of the deponent and Chandrashwar Singh (defendant No. 1) on the plaint of title suit No. 33 of 1927 were not genuine. Those signatures were marked Y/11 to Y/14 for identification. In cross-examination this witness in paragraph 53 stated that it was not a fact that a mortgage suit was filed against Gur Prasad on behalf of the joint family of the parties. He did not remember when the simple mortgage bond executed by Gur Prasad Singh in favour of Jhari Singh was burnt. He denied the suggestion that the signatures marked Y/11 to Y/14 were genuine.
62. Mr. Sinha urged that they had filed collusive suit in order to create evidence of jointness and therefore, they deliberately made false assertions in paragraphs 1 and 7 of the plaint that the members of the family were joint. The plaintiffs have not even filed the original mortgage bond on the basis of which the suit was filed and they have falsely alleged that it was destroyed by fire. He submitted that on behalf of the plaintiffs only the order sheet dated the 5th June, 1928 of title suit No. 33 of 1927 Ext. 13 (a) was filed and they purposely suppressed the other portion of the order sheet. Therefore, the defendants have filed the entire order sheet, Which is marked Ext. BB (5), and before this Court they prepared supplementary paper book containing the said order sheet. He referred to the order sheet of the 23rd June, 1927, which shows that the plaintiff applied for time. Defendant No. 2. Tirjug Prasad Singh entered appearance. The suit was adjourned to the 5th July, 1927. On that date defendant No. 2 filed written statement. Next he referred to the order dated the 15th November, 1927. On that date the plaintiff filed a petition for time alleging that defendant No. 2 was dead and he was not able to trace out his heirs till then. Then he referred to the order dated the 27th February, 1928, when plaintiff No. 1 and defendant No. 1 as well as the guardian-ad-litem of the minor defendants 3 to 4 put in joint petition for trial of the suit in the arbitration of Raghunandan Singh of Rampur and that the parties would abide by the award of the arbitration. On the basis of the aforesaid orders in the suit. Mr. Sinha submitted that it was plaintiff No. 1 alone, who was playing the role in the suit and instead of fighting the suit he brought about compromise since it was a collusive one. On the 5th June, 1928, the following order was passed in that suit :
"Defendant No. 1 puts in a petition of compromise consented to by the plaintiff.
Ordered Suit is decreed in terms of compromise."
Learned counsel submitted that Gur Prasad Singh, defendant No. 1, was in the camp of the plaintiffs and Baso Kumri, defendant No. 6, as it would be evident that Gur Prasad's son Sato Singh, who was defendant No. 3 in title suit No. 33 of 1927, deposed on behalf of defendant No. 6 as D.W. 33 in the present suit and supported the case of the plaintiffs that the properties were joint.
63. In order to counteract the assertion made in the plaint of title suit No. 33 of 1927, and in order to establish that it was a collusive suit. Mr. Sinha also referred to Ext. V, a written statement filed by Nandkeshwar Singh on the 5th July. 1927, the relevant portion of which reads as :
"That, the allegations of the plaintiffs that Jhari Singh is a member of a joint family having common business with the plaintiffs, and that at present the head member and Karta of the family and the guardian of minor plaintiffs is plaintiff No. 1, are quite false and for the purpose of suit, until a guardian of minor-plaintiffs is appointed by the Court, this suit is quite fit to be dismissed. Likewise the allegations regarding all the defendants constituting a joint family and defendant No. 1 being the head member and Karta of the family are wrong and meant for purposes of the suit. Defendant No. 1 is not major, rather he is minor, and the plaintiffs have not even appointed any guardian for him. For this reason also, this suit suffers from defect of parties."
64. I am not inclined to accept the contention of the learned counsel that the suit was collusive. It is not understandable as to Why Shibaran. Who was plaintiff No. 1 in title suit No. 33 of 1927, would act against the interest of defendants 1 to 3 particularly in view of the evidence of defendant No. 2 (D.W. 24) himself, who stated in paragraph 4 of his evidence that Shibaran had great affection and love for defendants 1 to 3. He, therefore, executed a will in respect of his properties on the 13th August 1950, in favour of those defendants and it was defendants Nos. 1 to 3, who used to look after his affairs before his death. Moreover, by the compromise in title suit No. 33 of 1927 plaintiff No. 1, i.e. Shibaran Singh, obtained a decree for the benefit of the plaintiffs including the present defendants 1 to 3. I have no reason to doubt the evidence of Ramchandra Singh, plaintiff No. 1. (P.W. 18) who stated in his evidence that the suit was filed on behalf of joint family against one Gur Prasad Singh. It was not a fact that the original bond was not burnt and the suit was fraudulently filed on that ground. Mr. Balbhadra Prasad Singh, Advocate General, appearing on behalf of Baso Kumri, defendant No. 6. submitted that the statement made by the plaintiffs in the plaint of title suit No. 33 of 1927, was binding, even on Chandreshwar Singh and Fauzdari Singh, although their signatures were not formally proved because of the provisions contained in Section 90 of the Evidence Act, the document being more than 30 years old. The relevant portion of that section reads as:
"When any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed or attested by the persons by whom it purports to be executed and attested."
65. Mr. Sinha, however, drew our attention to the evidence of D.W. 24. who stated that those signatures purported to have been put by him and Chandreshwar Singh were not genuine and they were not their writings. On the basis of his evidence he submitted that the presumption is rebutted. Therefore, Section 90 of the Evidence Act is not attracted to the instant case. In my view, his meagre evidence on this point does not rebut the presumption. Chandreshwar Singh, defendant No. 1, of the present suit, does not even come forward to deny his signature. If really those were not their signatures, the contesting defendants ought to have taken care to get them examined by an expert but they have not done so. Therefore, I am inclined to accept the submission made by the Advocate General and to hold that Ext. 4 (b) has complete protection of Section 90 of the Evidence Act and the signatures of the plaintiffs on the plaint of the title suit No. 33 of 1927 are presumed to be genuine.
66. The other documents on which reliance has been placed and on which the court below has also relied for holding that the properties were joint, are Exts. 3 (c) and 3 (d). Both are petitions under Section 40 of the Bihar Tenancy Act in respect of village Tatarpur Tauzi No. 6901 filed by Shibaran Singh. Ext. 3 (e) is dated the 28th September. 1947, filed in Case No. 3212 of 1947-48 whereas Ext. 3 (d) is dated 26th Sept. 1947 filed in Case No. 3210 of 1947-48. In the column meant for the applicant the names of Shibaran Singh and Chandreshwar Singh (defendant No. 1) find place, in both the petitions. Therefore, it was contended on behalf of the plaintiffs as well as defendant No. 6 that if the properties were not joint what was the necessity of both Shibaran and defendant No. 1 in filing petitions for commutation under Section 40 of the Bihar Tenancy Act. P.W. 18 stated in paragraph 22 of his evidence that their lands situated in Tatarpur were originally bhawli but later on Shibaran Singh and Chandreshwar Singh got the same commuted into nakdi in the proceedings under Section 40 of the Bihar Tenancy Act. He denied the suggestion that Jamuna Singh alias Ram Pratap Singh fraudulently got them commuted into nakdi whereas D. W. 24 stated in paragraph 20 of his evidence that they never applied for mutation of rent in respect of the lands situated in village Tatarpur. Subsequently, they learnt that Jamuna Singh got the rent of those lands fraudulently commuted into nakdi without their knowledge.
67. Mr. Sinha further contended that on those applications Chandreshwar Singh. defendant No. 1, had not put his signature at all. Simply because his name also occurred in the column meant for applicant, that would not affect his right nor it would show that the properties were joint. He submitted that even the signatures of Shibaran on those applications were not genuine. Learned counsel referred to such suggestion made to P.W. 18, who stated in paragraph 59 of his deposition that Jamuna Singh had also an interest in the land covered by Exts. 3 (c) and 3 (d) and that It was not a fact that Jamuna Singh had filed those papers without the knowledge of Shibaran Singh and Chandreshwar Singh. He also referred to the evidence of P.W. 11, who stated that he knew Shibaran Singh son of Ganauri Singh and also his writings. The two applications (Exts. 3 (c) and 3 (d)), were written by the said Shibaran Singh and they bore his signatures. In cross-examination, as to the suggestion, in paragraph 2 he stated that it was not a fact that Exts. 3 (c) and 3 (d) were not in the writing of the aforesaid Shibaran Singh and that he did not know his writing. In this connection, lastly he referred to the evidence of P.W. 14, who stated in his evidence that (he knew the parties and had seen the disputed lands which are in village Toi and Tatarpur, besides others. In paragraph 10 he stated that Shibaran Singh was a bit literate and that he knew only how to write his signature. He could not write even a letter. On the basis of the aforesaid evidence learned counsel submitted that Shibaran could not have written the contents of the aforesaid petitions with his own hand. In my view, this submission of Mr. Sinha is well grounded, particularly in view of the finding which I have given with regard to his knowledge of Kaithi script and his inability of writing correct words, while dealing with the question whether his signature on Akhaota was genuine or not on comparing the same with his signatures Exts 3 (7) and B (9) on Ext. A (42). It was not possible to write the entire contents of the two applications for Shibaran Singh could not have made even endorsements correctly under Exts. B (7) and B (9). In that view of the matter, no useful purpose would be served by dilating upon the arguments advanced by the parties with respect to Exts. 3 (c) and 3 (d). They should be completely ignored. Ext. 16 is the rent commutation schedule of Case No. 3210 of 1947-48 and Ext. 16 (a) is the rent commutation schedule of Case No. 3212 of 1947-48. Therefore, these two exhibits are also of no avail to the plaintiffs, since they arise out of the two applications. Exts. 3 (c) and 3 (d).
68. Another set of documents, which had been relied upon on behalf of the plaintiffs and which also have been relied upon by the court below on the question of jointness are Exts. 3. 3 (a), 3 (b) and 14. Ext. 3 (a) is an execution petition in rent execution case No. 350 of 1951 dated the 23rd February, 1951. Shibaran Singh together with defendants 1 to 5, it appears, had jointly obtained a rent decree against Sato Singh and others in respect of land out of T. No. 6902. Subsequently, after the death of Shibaran Singh the same was executed by the remaining five decree-holders. Ext. 3 is an objection petition filed by one of the judgment-debtors in rent execution case No. 350 of 1951 impleading Chandreshwar Singh. Fauzdar Singh, Jangli Singh, Shyam Sakal Singh and Maheshwari Singh as opposite first party. His objection petition was registered as miscellaneous case No. 66 of 1952. Therein an objection was raised regarding nonjoinder of the wife and daughter-in-law of Shibaran Singh, after the latter's death. Thereafter a rejoinder petition dated the 14th August. 1952. Ext. 3 (b) was filed in the said case on behalf of the decree-holders, that is, defendants 1 to 5 of the present suit. Therein, it is clearly mentioned that Shibaran Singh having died after passing of the decree in a state of jointness with the other decree-holders, the execution case was quite maintainable. Ext. 14 is the certified copy of the judgment in the said misc. case No. 66 of 1952 dated the 10th September, 1952, wherein it was decided by the learned Munsif that Shibaran Singh died in a state of jointness with other decree-holders and as such the execution case was maintainable even in the absence of his widow and daughter-in-law.
69. Mr. Sinha pointed out that Ext. 3 (b) was proved by Jugeshwar Prasad (P. W. 2), who simply stated in his evidence that he knew the writing of Dwarika Prasad Muharrir. The petition had been drafted by him and it bore the initial of Taiyab Babu. Learned counsel showed, that Ext. 3 (b) did not contain the signature and verification of Chandreshwar Singh defendant No. 1. It being not 30 years old, its due execution cannot be presumed under Section 90 of the Evidence Act. It was further argued that even the statement made in Ext. 3 (b) regarding jointness was not sufficient to hold that the plaintiffs and the defendants were joint. Sometimes casual statements are made in order to suit a particular purpose. In order to substantiate his contention he relied on Venkatapathi Raju v. Venkatanarasimha Raju (AIR 1936 PC 264). In that case the issue to be decided was whether the family was separate or joint. Their Lordships held at pages 268-269 as under:
".......It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position, and it is not their statements, but their relations with the estate, which should be taken into consideration in determining the issue......"
The above dictum of their Lordships was followed in Mst. Rukhmabai v. Laxminarayan. (AIR 1960 SC 335). In that case also the issue was whether one of the members of a joint Hindu family separated himself from others by renouncing his interest in the joint family property. In noticing the admissions alleged to have been made by some members of the family accepting the partition, it was similarly held Learned counsel also relied on (AIR 1938 PC 189) where their Lordships said that it is by no means a rare thing that a person makes a statement that he is a member of a joint family with his relative, but has reasons of his own for making that statement. It is not his statement, but his actings and dealings with the estate, which furnish a true guide to the determination of the question, of the jointness or otherwise.
70. In my view, those observations of their Lordships in various cases referred to above, do not lend support to the contention of the learned counsel on the facts and circumstances of the instant case. It may be noticed that their Lordships have not laid down a general proposition of law. It depends on the facts of each case. Whether there was previous partition or not is a question of fact. Moreover, in the present case various documents, which I have discussed above, are evidence of actings and dealings of the parties with the estate. I have already shown above that even prior to the alleged date of oral partition there used to be transactions in the names of individual members of the family. That apart, the statement made in Ext. 3 (b) is not a solitary one. There are various other documents containing various assertions filed by defendants 1 to 3 themselves which lend support to the evidence that the properties were joint and there was no previous partition.
71. Another set of documents relied upon by the plaintiffs are Exts. 4 and 4 (a). Both are plaints dated the 24th September. 1953, the former in case No. 962 of 1963 and the latter in case No. 960 of 1963. The plaintiffs in both of them are Samla Prasad Singh and others and the defendants are plaintiff No. 1 and defendants 1 to 5 of the present suit and the widow of Shibaran. In my opinion, these documents are not important to show jointness. Simply because the landlords chose to sue them jointly, it cannot be inferred that they were members of the joint family.
72. The last document, which was referred to on behalf of the plaintiffs is Ext. 11, which is a deed of exchange dated the 22nd June, 1956, executed by Garbhu Mahto, being the first party and defendants 1 to 4 being the second party. Defendant No. 4 had also signed for self and as guardian of his brother Maheshwari Prasad Singh, defendant No. 5 and of his minor uncle Ramchandra Singh plaintiff No. 1. By this deed of exchange Garbhu had given 20 decimals of land bearing plot No. 2569 to the second party, namely, defendants 1 and others, who in exchange had given their land bearing plot No. 2232 to Garbhu having the same area P. W. 18 has stated in paragraph 20 of his deposition that the disputed lands situated in Dhanuki were jointly cultivated by the parties. They got those lands by means of exchange from Kameshwar Mahto, and others. The lands, which were given to Kameshwar Mahto and others belonged to the joint family of the plaintiffs and defendants 1 to 6. The deponent was taken to the registration office to execute the deed of exchange but defendant No. 1 did not allow him and Maheshwari to execute them although, they were major, and got them executed by Shyam Sakal Singh as their guardian. Kameshwar Mahto and others also executed 5 deeds of exchange in favour of the parties; one of the deeds was executed by Garbhu Mahto. (Ext. 11). On the basis of this deed (Ext. 11) it is contended on behalf of the plaintiffs that since the plaintiffs and the defendants were joint they had jointly executed the deed of exchange as late as 1956. Had they been separate, they would not have jointly executed the deed of exchange. On the other hand, Mr. Sinha referred to the evidence of D. W, 24 in paragraph 12 to show that the parties had 7.72 acres of ancestral land in village Dhanuki. Out of them 6.17 acres were wrongly recorded in the name of one Hukum Mahto, Therefore, they fought with Hukum Mahto up to the High Court and there they succeeded. Thereafter they gave those lands to Hukum Singh by means of exchange and the latter gave 7.72 acres of land to them in the same manner. Out of those 7.72 acres defendants 1 to 3 got 9 bighas 5 kathas whereas the plaintiffs and defendants 4 and 5 got 3 bighas 2 kathas. Mr. Sinha urged that since there was common litigation, therefore, both the plaintiffs and all the defendants joined in the exchange even though they were separate.
73. The plaintiffs' counsel however, pointed out that defendants 1 to 3 had filed an application dated the 7th February. 1959, with a prayer to amend the written statement, which was allowed by the court. According to the said amendment, they have shown 20 decimals of land bearing plot No. 2569 to have been allotted to them only. According to the counsel for the plaintiffs Ext. 11 at least falsified the case of defendants 1 to 3 that there was previous oral partition and on partition 20 decimals of plot No. 2569 were allotted to defendants 1 to 3. In my opinion, that may be so, but Ext. 11 is not important for coming to the conclusion that the parties were joint, since all were benefited by the exchange. However, after considering various other documents, which I have referred to above, I am inclined to accept the plaintiffs' case that the properties were joint and there, was no previous partition. The evidence on the point of jointness adduced by the plaintiffs is superior to that of the defendant-appellants. I find no reason to differ from the findings of the court below on issue No. 7, and I hold that there was no previous partition.
74. As regards allocation of different shares to the parties. I have differed from the findings of the court below as given by it, on issue No. 9. In the earlier part of my judgment I have held that Baso Kumri, defendant No. 6, would not be entitled to 1/3 share in the joint family properties, as held by the court below. Instead she would be entitled only to 1/6th share. Therefore, to that extent the shares of the plaintiffs, defendants 4 and 5, and defendants 1 to 3 shall be augmented. Hence, the share of the plaintiffs will be 5/24th thereof defendants 4 and 5, 5/24th of defendants 1 to 3, 5/12th. The judgment and the decree of the trial court stands modified accordingly.
75. In the result, the appeal is allowed in part, as indicated above. The parties shall bear their own costs of this Court.
Shambhu Prasad Singh, J.
76. I agree.