Patna High Court
Indrajeet Tiwary & Ors vs Ramchis Tiwary & Ors on 31 March, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.614 OF 1974
(Against the judgment and decree dated 16.07.1974
passed by Sri Shyam Sunder Das, the learned IInd
Additional Sub-Judge, Siwan in Title Suit No. 39 of
1967/09 of 1973)
1. INDRAJEET TIWARY S/o Chandradeb Tiwari
2. Madan Tiwari, son of Sarbjeet Tiwari
3. Lalan Tiwari, on of Chandradeo Tiwari
4. Sri Krishna Tiwari, minor son of Chandradeb Tiwari, under the guardianship of
Indrajeet Tiwari
5. Akela Tiwari minor son of Bhup Narain under the guardianship of Smt. Sanjaiya
Devi
6. Smt. Samjaiya, wife of Bhup Narain Tiwari,
7. Smt. Anupa Kaur, w/o Indrajeet Tiwari
8. Smt. Lalmuna
9. Smt. LalpariI both appellant Nos. 8 & 9 , daughter of Chandradeb Tiwari
...........Appellants
Versus
1. Ramwati Kuar, W/o Late Basudeo Tiwari (deceased)
2. Butinath Tiwari, S/o Late Basudeo Tewari, both resident of village, Chakiya,
P.O. Bhaluan, P.S. Guthari, District-Siwan
....................... Respondents.
For the Appellants: (1) Mr. B.R. Pandey
(2) Mr. D.K. Singh
(3) Mr. J.K. Pandey
(4) Mr. Mallika Mazumdar
(5) Mr. A.K. Singh
For the Respondents: (1) Mr. K. N. Tiwary
(2) Mr. Bidya Bhushan Mishra
(3) Mr. Binay Kant Manti Tripathi
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo,J. This First Appeal is directed against the judgment and decree dated 16.07.1974 passed by Sri Shyam Sundar 2 Das, the learned IInd Additional Sub Judge, Siwan in Title Suit No. 39 of 1967/09 of 1973 whereby the learned court below dismissed the plaintiffs' suit for declaration of title with regard to the suit property.
2. The plaintiffs-appellants filed the aforesaid suit for declaration of their title described in detail in schedule II & III of the plaint. The plaintiffs claimed the said relief on the facts inter alia that Ram Tahal Tiwary had four sons; namely, Sarju Tiwary, Raghuveer Tiwary, Mandala Tiwary & Kamla Tiwary. The first son, Sarju Tiwary has three sons; namely, Sheo Mandal, Dukhi Tiwary and Jiut Tiwary. Jiet Teary was original defendant No. 3 who was the only surviving son. During pendency of this suit, he died and his heirs have been substituted. The second son of Ram Tahal , namely, Raghuveer Tiwary had two sons; Bali Tiwary and Chandradeo Tiwary. The sons and daughters of Chandradeo Tiwary are the plaintiffs whereas the two sons of Bali Tiwary, i.e. Ramcheej Tiwary and Basudeo Tiwary are defendant Nos. 1 & 2. A genealogy table has been given at the foot of the plaint and this genealogical is admitted by the parties.
3. According to the further case, all the properties of Ram Tahal Tiwary were recorded jointly in the name of his four sons. Only some of the properties were recorded in the name of Fulai Kunwar who was sister of Raghuveer Tiwary. She died issueless and the property devolved upon the nephew of Fulai Kunwar. Therefore, all the properties were in possession of the parties jointly. About 40 years ago, there has been separation in the family, but there was 3 no partition by meets and bound regarding ancestral properties. After separation as aforesaid, Bali Tewary & Chandradeo Tewary jointly acquired several properties in the name of different members of the joint family and also in their own names. Some of the properties were acquired in the name of Jiut Tewary, Sarvjeet Tewary, Indrajeet Tewary, Ramjeet Tewary & others but because Jiut Tewary failed to subscribe his contribution of consideration; he was not given any share in the land. Subsequently, Bali Tewary and Chandradeo Tewary partitioned the properties acquired by them in 1950. The lands which fell in the share of Bali Tewary and his sons, have been described in schedule-I. The lands of Chandradeo Tewary and his sons have been described in schedule-II of the plaint according to that partition. In 1949, Mangla died. Subsequently, Kamla also died and the line of Mangla & Kamla extinct.
4. Thereafter, in the year, 1951, the parties partitioned the ancestral lands. The said partition took place between Kamla Tewary, Jiut Tewary, Bali Tewary & Chandradeo Tewary. Kamla Tewary relinquished his entire interest in favour of Bali Tewary and Chandradeo Tewary. The lands which fell in the share of Chandradeo Tewary have been mentioned in schedule-III and the lands which were given to Bali Tewary and his sons have been mentioned in schedule-IV. The land which was given to Jiut Tewary and his sons have been mentioned in schedule-V of the plaint. The further case is that after the said partition, a memorandum of partition was prepared on 07.02.1951 which was signed by the 4 parties and thereafter, the parties acquired separate properties for themselves out of their own income. Only one acquisition was made on 22.7.1953 in the joint name which has also been partitioned subsequently.
5. Recently some dispute arose between the parties with respect to some lands which were recorded in the name of Bali Tewary alone and therefore, the plaintiff filed the suit for declaration of title with respect to the property mentioned in schedule-II & III.
6. The defendant Nos 1 & 2 filed separate contesting written statement. The defendant No. 3 filed a separate contesting written statement. The genealogical table given by the plaintiff is admitted by them. The year of death of Mangla Tewary is also admitted. According to defendant Nos. 1 & 2 , they also admitted that in 1951, there was partition of ancestral propertiese and Kamla Tewary relinquished his entire interest in favour of Bali Tewary and Chandradeo Tewary and the parties came in possession of the properties. However, these defendants contended that after separation, Chandradeo Tewary and Bali Tewary separately acquired lands in their respective names and they had no concern with the lands of each other which were their self-acquired property. The descendants of both of them are coming in separate possession and are paying rent separately. They admitted the fact of acquisition of land on 22.07.1953 and also admitted the case of the plaintiff that the said land was subsequently partitioned.
7. The further defence of these two defendants is that the lands recorded in the name of Bali Tewary in the recent survey, was also 5 self acquired properties bearing Khata No. 13, Survey Plot No. 301 and Khata No. 60 bearing plot No. 369 and 379 of village-Chakiya and they are paying the rent for the same. In schedule-I of the W.S. the self-acquired property of Bali Tewary have been mentioned and it is stated that others have no concern with respect to those properties. Their further case is that their father took settlement of plot Nos. 253, 368, 157, 310 & 45 of Khata No. 05 of village- Chakiya from Dhenukdhari and since then they are coming in possession after mutation.
8. The defendant No. 3 denied that there was any partition 40 years ago. All the properties acquired in the name of Bali Tewary, Chandradeo Tewary and/or in the name of any other members of the joint family belonged to the entire joint family and each member had share in it. According to this defendant No. 3, he was earning a lot as he was in service and out of that earning, the properties have been acquired in the name of different members of the joint family and therefore, the members were paying rent in joint of all the properties. He denied self-acquisition. The defendant No. 3 further claimed that there was no partition of the acquired land in 1950. He also claimed that there was no partition of the ancestral lands in 1951. According to him, all the properties are still joint and every member have got share in it. There were no family arrangements between the parties and Kamla Tewary never relinquished his interest in favour of Bali & Chandradeo Tewary. His further case is that after death of Kamla Tewary, his share devolved upon Jiut Tewary, Bail Tewary & Chandradeo Tewary. The alleged memo of 6 partition dated 07.02.1951 is disputed by the defendant and he alleged that he never signed the same. His further case is that the properties acquired by sale deed dated 22.07.1953 is still joint and there has been no partition. So far the property recorded in the name of Fulai Kunwar is concerned, this defendant said that on her death, the property devolved upon Saryu Tewary, Kamla Tewary & Mangla Tewary who were alive on the date of death of Fulai Kunwar and in that property, Chandradeo Tewary and Bali Tewary had no concern. Besides above defence, various legal points were also raised, such as the suit is not maintainable, the suit is barred by limitation and court fee paid is not sufficient and valuation is low.
9. After perusal of the pleadings of the parties, the learned court below framed as many as seven issues. Out of the said 7 issues, the main issues were issue No. 5 & 6 i.e. Have the plaintiffs exclusive title on the lands of schedule-II & III of the plaint and whether the story of partition as alleged by the plaintiff is correct? After considering the evidences; oral and documentary adduced by the parties, the learned court below came to the conclusion that the plaintiffs have failed to prove the partition as alleged by them either with respect to the properties acquired in the name of Bali Tewary, Chandradeo Tewary and other family members or the ancestral properties. On this finding, the learned court below dismissed the plaintiffs suit for declaration of title.
10. The learned counsel for the appellant submitted that the learned court below has wrongly given finding that there had been no partition with regard to the properties standing in the name of 7 different members of the family. The learned counsel submitted that no doubt, there is presumption of jointness in the joint Hindu family but presumption of jointness is rebutted. According to the plaintiffs, there had already been separation between the parties 40 years ago and thereafter, the properties were acquired jointly by Chandradeo Tewary and Bali Tewary in the names of different family members, as such, those properties are self-acquired property. These lands were partitioned between them, but the learned court below has given a contrary finding in spite of the fact that there are overwhelming evidences on record to show that there was partition. The learned counsel further submitted that so far ancestral lands are concerned; it was partitioned by memorandum of partition in the year, 1951 but that partition has been wrongly disbelieved by the learned court below on the ground that the memorandum of partition is required to be registered. On these grounds, the learned counsel for the appellant submitted that the impugned order and decree are liable to be set aside.
11. On the otherhand, the learned counsel appearing on behalf of the respondents submitted that presumption of jointness is in favour of the defendants. It is for the plaintiff to prove that there was partition by meets and bound. The learned counsel submitted that the properties which were acquired are in the name of different members of the joint family. Admittedly, there was ancestral property and there was no partition by meets and bound as admitted by the plaintiffs in the plaint prior to 1951. If there was no partition by meets and bound, then wherefrom the defendants 8 acquired the land because they had no separate earnings except the cultivation of the joint lands. On the otherhand, it is defendant No. 3 was in service and was earning a lot and out of his earning, the properties were acquired jointly in the name of different members of the family and therefore, the properties are joint properties. The learned counsel further submitted that the alleged memorandum of partition is not a memorandum of partition rather it is a deed of partition and, therefore, it requires registration and since the document which has been produced by the plaintiffs has not been registered, on the basis of that document, no finding can be given that there had been partition by meets and bound. If there had been no partition by meets and bound, then the plaintiffs cannot get a declaration of title over a particular property described by him either in schedule-II or schedule-III of the plaint. On these grounds, the learned counsel prayed that the appeal be dismissed.
12. In view of the rival contentions of the parties, the points arise for consideration in this appeal is as to whether the plaintiffs- appellants have been able to prove their exclusive title on the suit property and as to whether they acquired the title because of the fact that the properties were allotted to them in partition as alleged by them.
FINDINGS
13. Before going to the merit of this case, it may be mentioned here that by terms of order dated 15.5.1998, this court has directed that incompetency of the appeal be considered at the 9 time of final hearing because of the fact that the substitution application for substituting the legal representative of deceased- respondent No. 4 was dismissed on 10th of July, 1996. So far this question is concerned, from perusal of the record; it appears that original defendant No. 3 was Jiut Tewary. After his death, his heirs were substituted in the court below who are respondents No. 3 to 5 in this appeal. It appears that on the death of respondent No. 3, i.e. widow of Jiut Tewary, her name was expunged on the ground that her two heirs are on record as respondents No. 4 & 5. On the death of respondent No. 5, i.e. daughter of Jiut Tewary, her name was expunged on the ground that she died leaving no heirs and so far respondent No. 4 is concerned, at present, no substitution is there. In other words, estate of original defendant No. 3 Jiut Tewary who was contesting the suit as well as this appeal and who had filed a contesting written statement is not represented in this appeal. On this ground, in my opinion, the whole appeal becomes incompetent and is liable to be dismissed. However, I proceed to decide the other contentions and points raised by the parties on merit.
14. According to the plaintiffs' case, there had been separation in the family 40 years ago. To prove the fact of separation before 40 years, the plaintiff examined P.W. 9, 11 and 12 and so far the other witnesses are concerned, they are on other points. P.W. 12 is the plaintiff, Indrajeet. P.W. 1, Jangilal , P.W. 2 Nageshwar Prasad, P.W. 3, Dinesh Prasad, P.W. 4, Hari Shankar Prasad, P.W. 5 Gora Prasad, P.W. 6 Radha Jee Pandey, P.W. 7 Shashi Bhushan Dubey and P.W. 13 are formal in nature and have proved the dopcuments 10 which have been exhibited on behalf of the plaintiffs. P.W. 14 is the handwriting expert. P.Ws - 9, 11 & 12 have stated that there had been separation in the family 40 years ago. So far these evidences are concerned, the learned court below has discussed their evidences in great details and came to the conclusion that they have failed to prove that they had been separation 40 years ago. It is the case of the plaintiff that the ancestral land was partitioned in the year, 1951. Therefore, in other words, the properties were joint prior to 1951 between the parties. Even if they were cultivating the lands separately or that mess was separate, it cannot be said that they partitioned the properties.
15. In a decision reported in 1999 (1) PLJR 199 (Deoki Mallah Vs Surji Mallahain & Ors) , this court has held that the presumption is that unless a division is there, the property of the Hindu family remains joint. Separate in mess and separate cultivation among the co-sharer do not mean that there was partition by meets and bounds. Even if separate Kabzabari is recorded in revenue record, it does not prove separation or partition rather it given analogy that there was separate cultivation or possession by the persons in favour of whom, Kabzadhari has been recorded. The rent receipts should be taken on the same light.
16. In such view of the matter, even if for the time being, the plaintiffs' case is believed then also there was no partition of the joint family property. Only there was separate cultivation, according to the convenience of the parties and it will never mean that the property was partitioned. Moreover, after considering the oral 11 evidences, the learned court below has given a finding that the plaintiffs failed to prove that there was separation 40 years ago. The learned counsel for the appellant could not point out any such vital part of the evidence or statement of any of the witnesses examined on behalf of the plaintiffs which has not been considered by the trial court and it is not the case of the appellant that had that part of the evidence been considered the finding would have been otherwise.
17. In a decision reported in AIR 1983 SC 114 (MADHUSUDAN DAS VS SMT. NARAYANIBAI ( DECEASED) & OTHERS), the Hon'ble Supreme Court has held as follows:
" In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence, it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies or the appraisal of the evidence by the trial court suffers from a material irregularity or 12 is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises. This approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court."
18. In view of the above settled principles of law, this court cannot reverse the finding of fact that there had been no separation 40 years ago arrived at by the learned court below after discussing the oral evidences. As stated above, I have gone through the evidences of P.Ws. 9, 11 and 12. Except their statement, there is no other reliable evidence. Moreover, P.W. 12 at Paragraph-18 had admitted that the properties were joint and not partitioned. The mess was also joint. He has also admitted that even after separation, there was joint cultivation.
19. In view of the above consideration, in my opinion, the learned court below has rightly found that there was no separation as alleged by the plaintiffs 40 years ago. The finding of the learned court below on this point is hereby confirmed.
20. The next point raised by the plaintiffs-appellants, is that the different properties acquired by the parties through the sale deeds Ext.-2 series are the self-acquired properties of Chandradeo Tewary and Bali Tewary and they partitioned these properties in the year, 1950. Now let us consider whether the plaintiffs have been 13 able to prove that these properties are self-acquired properties of Chandradeo Tewary and Bali Tewary. P.W.12, Indrajeet Tewary, the plaintiff has admitted in his evidence that the family had ancestral land measuring 6 ½ bighas. This fact is admitted in plaint as well as in the written statement of the defendants. The only difference is that there had been no partition. In view of the finding that there had been no separation as a whole and that the family had 6 1/2 bighas of ancestral land, according to Hindu Law , it will be presumed that the properties acquired in the name of different members of the family is joint family property and it is for the member in whose name the sale deed stands to prove that he acquired the property without the aid of joint family fund and out of his earned money. In this case, it appears that some of the lands in suit, were acquired in the name of Ramjeet and also Jiut Tewary, Jiut Tewary is defendant No. 3. It is admitted case that he was in service. According to him, he was earning a lot. Therefore, the joint family had sufficient land and from the income of the said land, these acquired properties can be acquired. It is not the case of the plaintiff that there was no sufficient income from the ancestral land. On the otherhand, it is the case of the plaintiffs and the defendant Nos. 1 & 2 that from the cultivation of the joint family land, they earned and acquired the suit lands. One explanation has been given by the plaintiffs that Jiut Tewary did not contribute , therefore, he was not given share, cannot be relied upon because the sale deed is in his name also. It is for the plaintiffs to prove that it was acquired without the aid of joint family fund. Unless it is proved by 14 the plaintiffs that it is their self acquired properties, the right, title and interest of Ramjeet or Jiut will not be extinguished. P.W.7 in his evidence admitted that there was no partition of the lands. The defendant Nos. 1 & 2 have also adduced evidences in support of the case that the properties were acquired separately by Chandradeo and Bali but none of them have been able to show the separate source of income. It is the case that out of the joint cultivation and its earning the property has been acquired.
21. It is well settled principle of Hindu Law that all purchases made from income of ancestral property would form part of joint family property whether the purchases are in the name of one member or in the name of all unless it is proved by the person in whose name, the property stands purchased the same without the aid of income from joint family land.
22. Ext-1 series are the rent receipts. These documents only show that payments of rent were made but are not conclusive proof of partition nor these documents prove that the properties are self- acquired properties. Ext-7 is one of the sale deeds dated 22.07.1953 which is in the name of Chandradeo and others which again indicates that there was no partition either in 1950 or in 1951.
23. From the above discussion of the evidences, it appears that the plaintiffs have failed to prove that either Chandradeo or Bali had separate source of the income. They also failed to prove that there had been separation and partition of the joint family lands. Except the oral statements that the properties are self-acquired properties, there is nothing on record to prove the same. The sale deeds are 15 standing in the name of different persons. It is admitted fact that the family has got 6 1/2 bighas of land and out of the income of these lands, the property has been purchased.
24. In view of the above facts and circumstances of the case, I find that the learned court below has rightly given a finding that the plaintiff have failed to prove that the properties are self-acquired properties of Chandradeo and Bali. I do not find any infirmity in the said finding. According, the finding of the learned court below on this point is confirmed.
25. So far as the alleged partition of the so-called self-acquired property is concerted, also the learned court below has considered the oral evidences and gave a categorical finding that the plaintiffs have failed to prove the partition in the year, 1950.
26. In view of the above referred decision reported in 1983 SC, 114, the finding of fact on this point arrived at by the learned court below on appraisal of oral evidences should not be interfered with. Moreover, it is held that the properties are the joint family properties and not the self-acquired property of Chandradeo and Bali. Even if there was partition, it is not according the law because the defendant No. 3 has not been given share in the property. Considering the above facts and circumstances, in my considered view, I find that the plaintiffs have failed to prove that there was previous partition regarding these properties.
27. So far the partition of ancestral property is concerned it is the case of the plaintiffs that the properties were partitioned in the year, 1951 and after partition, the memorandum of partition was 16 executed. The memorandum of partition has been proved as Ext-9 in this case. From perusal of Ext-9, it appears that it is not a memorandum of partition rather by the said document, partition had been affected. And, therefore, the document Ext-9 requires registration. Unless the document is registered, it will not be considered and on the basis of the said document, no finding can be recorded that there was partition by meets and bounds. The learned counsel for the appellants submitted that even if it is inadmissible in evidence but then it was admitted in evidence without objection and, therefore, in the appellate court, no such objection is permissible. So far this argument is concerned, the admissibility is one point and reliability is another point. If the document requires registration, then unless the document is registered, it is admissible to evidence for co-lateral purposes only. In a decision reported in 1988 SC 881, the Hon'ble Supreme Court has held that unregistered partition deed can be admitted to evidence for co-lateral purposes. Therefore, on the basis of Ext-9, no finding can be given that there had been partition by meets and bounds. At best, for the co-lateral purposes, it can be looked into and on the basis of the same, it can be said that the parties are in separate cultivation. In view of the above facts, it cannot be said that the plaintiffs were allotted a particular land. Unless the partition by meets and bounds is proved, no declaration of title can be granted to the plaintiffs.
28 The further case of the plaintgfiffs is that Kamla Tewary relinquished his share in favour of Chandradeo and Bali. So far as 17 this case is concerned, no such relinquishment deed has been produced. It is well settled principles of law that if statute requires that title will pass only on execution of registered deed, then title will not pass by mere admission. Therefore, by relinquishment only, the title will not pass to either Chandradeo or Bali. Moreover, it has been held above that the Ext-9 itself is not memorandum of partition rather it is partition deed which requires registration.
29. In view of the above discussions, I find that the plaintiffs have also failed to prove the partition by meets and bounds of the ancestral land in the year, 1951. The finding of the learned court below, on this point is therefore confirmed.
30. In view of the above findings, in my opinion, the plaintiffs are not entitled to any relief claimed by them. The learned court below has therefore rightly dismissed the suit.
31. In the result, this appeal is dismissed in the facts and circumstances of the case no order as to costs.
(Mungeshwar Sahoo,J.) PATNA HIGH COURT The........th of April, 2010 N.A.F.R./AKV