Patna High Court
Chhatradhari Mahton And Ors. vs Akleshwar Mahton And Ors. on 29 November, 1951
Equivalent citations: AIR1952PAT382, AIR 1952 PATNA 382
JUDGMENT Sinha, J.
1. This is a plaintiffs' appeal in a suit for partition of plaintiffs' 5 annas 4 pies share in 34.80 acres of land.
2. The genealogy given by the plaintiffs is undisputed. Their case is that the family continued joint with Ritlal Mahton, father of defendant No. 1, as the karta tul 1338 Fasli. For the sake of convenience the family separated in mess in 1330 Fasli, but the properties of the family continued joint until 1338 Fasli when all the joint family properties except the property in suit were partitioned by metes and bounds. The parties, according to the plaintiffs, are in joint possession of the property in suit, but, as inconvenience was felt in maintaining joint possession and in payment of rent, they demanded partition of the suit lands, but, on the defendants' unwillingness to get the partition effected amicably, the plaintiffs were obliged to file the present suit. Two sets of defendants have been impleaded. The defendants 1st party only contested the suit, while the defendants second party filed a written statement substantially supporting the case of the plaintiffs. According to the major defendants of the defendants 1st party, it was about 32 years before the suit that a private partition in the family had been effected by which the several branches of the family separated in mess from one another and all the joint properties ' except their ancestral lands were partitioned by metes and bounds. It was in 1338 that their ancestral lands were divided by punches. After the division by metes and bounds in 1338, no property was left joint between the parties. It is alleged that properties acquired by each of the cosharers after the first partition, which took place about 32 years before the suit, remained his separate property with which the other cosharers had no concern. It is said that the properties mentioned in schedules 2 and 3 of the plaint are the separate and self-acquired properties of the defendants 1st party with which the plaintiffs or the defendants 2nd party have no concern, and it is further contended that the properties mentioned in Schedule 1 of the plaint, which are part of the ancestral property, had already been partitioned. The minor defendants 1st party filed written statement through their guardian-ad-litem adopting the defence put forward by the major defendants 1st party.
2a. The learned Subordinate Judge has held that, where partition is admitted or proved, the presumption is that all the properties were divided and a person alleging that some family properties remained joint has to prove his case, and that the onus of proof in this case, on the admitted facts, was very heavy on the plaintiffs and that it was for them to prove that the property in suit was excluded from partition and was left ijmal. After a very careful consideration of the evidence, the Court below came to the finding that the plaintiffs' story of exclusion of the suit lands from the previous partition was a myth and that the plaintiffs failed to prove that the lands in suit were left ijmal. It was also held that the lands set out in Schedules 2 and 3 of the plaint were the separate and self-acquired properties of the defendants 1st party and that there was a complete partition between the parties in 1338 Fasli. as alleged by the defendants 1st party. Upon these findings, the learned Subordinate Judge dismissed the suit with costs.
3. Mr. Misra, Counsel for the appellants, contended that the Court below was wrong in dismissing the suit and in holding that tnere was a complete partition in the year 1338 Fasli. He also challenged tne finding of the learned. Subordinate Judge that the onus of proof was upon the plaintiffs. It was further contended that the learned Subordinate Judge was misled in holding that there was a complete partition in 1338 Fasli because of the recitals in exhibit B(4) and also because of there having been certain criminal cases between the parties. Mr. Misra also argued that the Court below should have held that the plaintiffs' case regarding separation in 1330 Fasli was fit to be believed and that the properties acquired in the name of Ritlal Mahton, who was the karta of the joint family before the separation in the year 1330 Fasli, were the properties of the joint family and that, therefore, the properties mentioned in Schedules 2 and 3, which are claimed by the defendants 1st party as their self-acquisition, should have been partitioned between the parties. Emphasis has been laid by the learned Counsel on the fact that before separation in 1330 Fasli, the defendants 1st party or their ancestor Ritlal Mahton had no other source of income and therefore any acquisition made by Ritlal before 1330 should have been held to have been made from out of the joint family funds.
4. In the present case, in my opinion, the onus of proving that the properties in suit were excluded from the partition of 1338 Fasli was entirely upon the plaintiffs. The plaintiffs, therefore, had to discharge a double onus so to say the onus of proving that certain properties were excluded from partition was upon them and, being plaintiffs, they had to prove their case in order to enable them to get a decree. Where there has been once a partition, either proved or admitted, the presumption is that it was a complete partition both as to parties and as to property and that there is no presumption in such a case that any property was excluded from partition. The presumption, however, is rebuttable and its strength must necessarily depend upon the circumstances of each case.
5. The first case which I like to mention in this connection is the case of 'ANANDIBAI v. HARI SUBA', 35 Bom 293 a judgment of Chan-davarkar and Heaton, JJ, That case is an authority for the proposition that, "according to the Hindu law, he who alleged-partition must prove it, because 'once is a partition made'. If it is proved that there has been a' breach in the state of union, the law presumes that there has been a complete partition both as to parties and property. The presumption in question continues until it is rebutted by proof of an agreement............."
The next case to which reference should be made is the case of 'KAILASH CHANDRA v. BUOY' CHANDRA', 36 Cal L J 434, a judgment of Mooker^ee and Cuming, JJ. It is laid down therein that if, after acquisition, there was a partition, among the members of a family, there is no presumption with regard to this or other property, that it was excluded from the partition and that the burden lies upon him who alleges exclusion to establish his assertion. The next case is the case of 'SMT. PURNIMA DEBYA v. NAND LAL', 11 Pat 50 which is also-
an authority for the proposition that when a partial partition is proved or admitted to nave taken place, the presumption is that there has been an entire partition both with relerence to rights and properties. The case of 'KUMA-KAPPA CHETTI v. ADAIKKALAM CHETTY', 55 Mad 483 and that of 'NARMADABAI TUL-SIRAM v. RUPSING BHILA', AIR 1938 Bom 69 are also to the same effect. The latest case of our own Court is reported as 'RAMJUGESH-WAR v. GAJADHAR', 29 Pat 980 where my Lord the Chief Justice delivered the judgment to which Reuben, J. agreed. The facts of that case were very much similar to the facts of the present case, and the authority of '55 Mad 483', and several other cases to which I have already made reference was approved. There is thus no doubt that the onus of proving exclusion of the properties in suit after once there has been a partition of the joint family properties was upon the plaintiffs. The plaintiffs had, therefore, to prove that, in spite of the partition in 1338 Fasli, the properties in suit still remained the joint property of the parties.
In my opinion, the plaintiffs have entirely failed to prove the same. There is no documentary evidence to prove that there was any agreement between the parties at the time the previous partition in 1338 Fasli was made to exclude the properties in suit from partition, and the oral evidence on behalf of the plaintiffs (P. W. 5 and some other witnesses) is unworthy of reliance. In their plaint, the plaintiffs merely alleged that in the year 1338 Fasli a private partition was effected in respect of the joint properties save and except those mentioned in Schedules 1, 2 and 3 of the plaint (paragraph 5 of the plaint). There is no mention as to the reason or reasons why the properties' in suit were excluded from partition. This gap in the pleadings was unsuccessfully sought to be filled up by the evidence. It was sought to be proved that these properties were left joint so that there might be convenience in payment of a certain debt of the family which amounted to Rs. 3,000 payable by the cosharers to one Gopal Chaudhuri. I have no hesitation in accepting the reasons given by the learned Subordinate Judge for disbelieving this story of the plaintiffs. This story, as has been observed by the learned Subordinate Judge, was most improbable and no Court could accept the same. It had been contended that the Court below was wrong in placing any reliance upon the recital in exhibit B(4). This document is a sudbharna bond executed by Pardip Mahton and others, defendants 2nd party, in favour of one Ratinath Pathak on the 2nd October, 1931. In paragraph 5 of the said document, it is recited that the defendants 2nd party, Ritlal Mahto. the ancestor of defendants 1st party and Vidaya Mahton of the plaintiffs' branch, who is since dead, that is all the members of the joint family, who had for a few years been separate in mess, business and monetary transaction, had divided amonest themselves the ancestral and recently purchased nami and benami properties by virtue of a private partition and every one was in possession of his apportioned share, other persons having no concern therewith. In my opinion, the recital, though not binding on the plaintiffs, it not being a document inter partes, is still admissible in evidence being relevant under Section 11, Sub-clause (2) of the Evidence Act which runs as follows:
Facts not otherwise relevant are relevant-
(1) .......
(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable."
The fact in issue is whether the property in suit was kept joint between the parties even after the partition and the recital in this document, in my judgment, makes if probable that no property was excluded from the partition in 1338 Fasli. Mr. Misra tried to make a capital of the statement made by D. W. 3 to the effect that Ritlal, Chhatradhari or Ranglal had no source of income except cultivation. There is no evidence of any other witness to corroborate the same, and this witness appears to have had no concern with the family of the parties. But, apart from it, in the view which I have taken of the evidence given by the plaintiffs in regard to the exclusion of the properties in suit from the previous partition, this question or any other question raised by the learned Counsel is of no importance.
I am satisfied upon the evidence that the plaintiffs have failed to prove that the properties in suit were excluded from the partition of 1338 Fasli and that they were in joint possession of the same at the time when they brought the suit. Learned Counsel referred to exhibits C (5) and A (15) to show that some of the properties covered by the suit in village Bichhi were purchased before the separation of the joint family status in 1330 Fasli. That may be so, but the acquisitions having been made before the partition of 1338, there is no presumption that those properties, though acquired before partition, were excluded in the partition of 1338 Fasli '36 Cal L J 434', and the plaintiffs having failed to prove their joint possession over these properties, they cannot succeed.
It was also faintly argued that the division of property among the several branches was unequal. That may or may not be so, and even conceding that the division was unequal, the partition cannot be reopened in the absence of any proof by the plaintiffs of the circumstances in which such unequal division came to be made, and it is not possible for the Court to say, in the absence of evidence, that the partition, as effected in 1338 Fasli, was unfair and fraudulent or that by some mistake or error the properties in suit were excluded from partition.
6. I would accordingly uphold the findings of the Court below and affirm its judgment and decree.
7. In the result the appeal must be dismissed with costs.
Ramaswami, J.
8. I agree.