Patna High Court
Srimati Hankari Devi And Ors. vs Smt. Rajbhawani Devi And Ors. on 8 May, 2007
Equivalent citations: 2007(2)BLJR2675
Author: Syed Md. Mahfooz Alam
Bench: Syed Md. Mahfooz Alam
JUDGMENT Syed Md. Mahfooz Alam, J.
Page 2676
1. First Appeal No. 497 of 1973 and First, Appeal No. 224 of 1976 were heard analogous as both the appeals arise out of the common judgment dated 31st August, 1973 passed by Sri Rameshwar Narain Singh, 2nd Additional Subordinate Judge, Champaran at Motihari in Title Suit Nos. 164 of 1967 and 345 of 1967 (both analogous). Accordingly, both these appeals are being disposed of by this common Judgment passed in First Appeal No. 497 of 1973.
2. In Title Suit No. 164 of 1967 Bhagwat Rai and others were plaintiffs and Madan Singh & others were the defendants. The said title suit was filed for declaration that the registered deed of gift executed by original defendant No. 2 Sukhdeo Rai in favour of his daughter's son Madan Singh (defendant No. 1) is void and not binding upon the plaintiffs. Partition Suit No. 345 of 1967 was filed by Smt. Hankari Devi and another against Most. Singari Kuer and others for partition of their half share in the property described in Schedules 1 and 2 of the plaint. As per the judgment of the Page 2677 learned Subordinate Judge dated 31st August, 1973 Title Suit No. 164 of 1967 was decreed (in part) whereas Partition Suit No. 345 of 1967 was dismissed and as such, in the present appeals defendants of Title Suit No. 164/1967 and plaintiffs of Partition Suit No. 345 of 1967 are the appellants.
3. Before making comments on the judgment of the trial court, I would like to state the respective case of the parties.
As per the plaint of Title Suit No. 164/67 and the written statement of Partition Suit No. 345/67, the case of the original plaintiffs of Title Suit No. 164/67, namely, Jagdeo Rai and others is that Bujhawan Rai was the common ancestor of the parties. He had three sons, namely, Jagdeo Rai, Mangani Rai and Sukhdeo Rai. The said Bujhawan Rai died in the state of jointness with three sons and after his death all the three sons came in joint possession of the ancestral properties left by him. They all remained joint even after revisional survey operation till 1920 when Sukhdeo Rai, one of the sons of Bujhawan Rai, developed illicit relationship with a woman of Tharu community whom he kept her as concubine. This was not liked by other two brothers as a result of which in the year 1920 itself partition took place amongst the sons of Bujnawan Rai. However, even after the said partition the two brothers, namely, Jagdeo Rai and Mangani Rai remained joint. Accordingly, 1/3rd share was allotted to Sukhdeo Rai whereas 2/3rd share was allotted to Jagdeo Rai and Mangani Rai jointly. The property allotted to Sukhdeo Rai was shown in Schedule 2 of the written statement of Partition Suit No. 345 of 1967 whereas the properties allotted to Jagdeo Rai and Mangani Rai jointly had been shown in Schedule 1 of the written statement.
Further case is that after partition, the old ancestral house standing over plot No. 1204 fell in joint share of Jagdeo Rai and Mangani Rai whereas homestead land appertaining to plot No. 1254 was allotted to Sukhdeo Rai, who after partition, constructed a Tatti house over the said plot No. 1254 and started residing therein with his concubine.
Further case is that some time after partition Mangani Rai died unmarried in the state of jointness with Jagdeo Rai and as such, his interest in the ancestral property devolved upon Jagdeo Rai by survivorship. Further case is that after partition, Jagdeo Rai made substantial acquisitions in terms of the landed properties described in Schedule 3 of the plaint with which Sukhdeo Rai had no concern which is also evident from the fact that the said Sukhdeo Rai executed an Ekrarnama on 7.2.1961 admitting the fact of partition between the three sons of Bujhawan Rai but at the instance of some enemies of the plaintiffs and with a view to create trouble, the said Sukhdeo Rai executed a deed of gift in favour of his daughter's son (defendant No. 1 Madan Singh) in respect of 6 bighas 2 kathas 13 1/2 dhurs of lands belonging to the plaintiffs of Title Suit No. 164/67. Hence, the necessity of filing of the suit arose and so, the plaintiffs of Title Suit No. 164/67 filed the suit.
4. The case of the plaintiffs of Partition Suit No. 345 of 1967 and defendants of Title Suit No. 164 of 1967 who are the appellants before me is that all the three sons of Bujhawan Rai, namely, Jagdeo Rai, Mangani Rai and Sukhdeo Rai are still members of the joint family and it is false to say that in the year, 1920 they had separated from each other and as per the said partition 1/3rd share in the ancestral property was allotted to Sukhdeo Rai whereas 2/3rd share in the property was jointly Page 2678 allotted to Jagdeo Rai and Mangani Rai. They have challenged this statement of the plaintiff of Title Suit No. 164/67 that Sukhdeo Rai had developed intimacy with a lady of Tharu community whom he kept her as concubine due to which disruption took place in the joint family of three brothers as false and concocted. It is stated that although in the month of November, 1965 all the three brothers separated in mess and business but their lands and houses remained joint and all the acquisitions which were made by Jagdeo Rai were made out of the joint family fund as Jagdeo Rai was the Karta of the joint family. It is further stated that the gift deed executed by Sukhdeo Rai in favour of his daughter's son Madan Singh in respect of 6 bighas 2 kathas 13 1/2 dhurs of lands is genuine and valid and the said Madan Singh has accepted the gift and had already taken possessions of lands mentioned in the gift deed. Further case is that the execution of gift deed in favour of Madan Singh caused bickering in the family and as such, the plaintiffs of Partition Suit No. 345/67 demanded partition of their half share in the property described in Schedules 1 and 2 of the plaint of Partition Suit No. 345/67 but Jagdeo Rai (original defendant No. 1) who did not pay any heed to the demand as such, Partition Suit No. 345/67 was filed.
5. From perusal of the judgment of the trial court it appears that on the basis of respective pleadings of the parties, the trial court framed as many as eight issues for determination in both the suits which are as follows:
(i) Is title suit No. 164/67, as framed, maintainable ? and is the partition suit No. 345/67, as framed, maintainable ?
(ii) Have the plaintiffs of the consolidated suits got valid cause of action for the suit ?
(iii) Are the consolidated suits barred by the law of limitation, estoppel, and / or acquiescence or bad for defect of parties ?
(iv) Is there proof of disruption of the joint family status of the parties to the consolidated suits in the year 1920 or ever there after ? If so, was it by partition by way of definition of shares or partition by metes and bounds ?
(v) Is the impugned deed of gift dated 10.1.66 executed by Sukhdeo Rai in favour of his daughter's son Madan Singh valid and operative ? If not, to what extent it is not ?
(vi) Do the properties described in Schedule 3 to the W.S. of P.S. 345/67 represent acquisitions by Jagdeo Rai made subsequent to the alleged partition of 1920; and, for that matter, or otherwise, are the properties described in Schedules 1 and 2 to the plaint of P.S.345/67 liable to partition ? If so, to what extent ?
(vii) To what relief or reliefs, if any, are the plaintiffs of the consolidated suits entitled ?
6. It appears that Issue No. iv, v and vi were the main issues and the learned trial court decided all the above mentioned three issues in favour of the plaintiff of Title Suit No. 164 of 1967 with exception that the gift deed dated 10.1.66 was held valid with respect to the 1/3rd share of Sukhdeo Rai in the ancestral property. According to the finding of the trial Court, there was complete partition between the parties in the year 1920 itself and in that partition Sukhdeo Rai, original plaintiff of Partition Suit No. 345 of 1967 got 1/3rd share in the ancestral property, whereas, his two brothers Jagdeo Rai and Mangni Rai jointly got 2/3rd share in the ancestral property. It further transpires that on the basis of the said finding the trial court Page 2679 decreed the suit of the plaintiff of Title Suit No. 164 of 1967 with exception that gift deed with respect of 1/3rd share of Sukhdeo Rai in the ancestral property was valid. However, the trial court on its finding dismissed the Partition Suit bearing Partition Suit No. 345 of 1967 holding that there was no unity of title and unity of possession between the parties and that the partition had taken place between the parties in the year 1920 itself.
7. The above findings of the trial Court were seriously assailed by the learned Advocate of the appellants. It was submitted that the learned Trial Court did not properly consider the legal position with regard to the presumption of jointness of a Hindu family. He further submitted that the trial court also failed to properly consider the oral as well as documentary evidence brought on record on behalf of the appellant and, so, he prayed to set aside the judgment of the trial court.
8. Before me, two points arise for consideration which are as follows:
(I) whether there was unity of title and unity of possession with respect to the suit properties between the parties or whether the partition had taken place between the parties long long ago i.e. in the year 1920 ?
(II) Whether the gift deed executed by Sukhdeo Rai in favour of his daughter's son Madan Singh is a valid document and, if not, whether the entire gift deed can be declared invalid and illegal document?
Point No. I:
9. This has been an accepted proposition that every Hindu family is presumed to be a joint family. The undivided joint family is a normal characteristic of a Hindu family. The presumption is that the members of a Hindu family are living in a state of jointness unless contrary is proved. The normal state of every Hindu family is itself a joint family, presumably joint in food, worship and estate. The presumption is also that it continues to be joint but now it is settled law that the presumption of jointness of a Hindu family is stronger amongst the nearer relation and the remoter we go the presumption become weaker and weaker. To support my view, I place reliance upon the decision reported in 1971 SC page 1962 (Indira Narayan v. Roop Narain and Anr.).
10. It is a question of fact to be determined in each case by the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or they remained joint and the burden is on the party who asserts the existence of a particular estate of things on the basis of which he claims the relief. In such view of the matter, the burden of proof that the parties have separated in the year 1920 lies upon the plaintiffs of Title Suit No. 164 of 1967. In order to prove the partition, one has to prove two things i.e. (i) severance of status or interest and (ii) actual division of property in accordance with the shares so specified, known as partition by metes and bounds. However, the severance of status takes place whenever there is unequivocal declaration by any co-parcener to hold his share separately even though no actual division takes place and the partition becomes complete as soon as the share of co-parcener is defined. In the light of the maxim described above, I would like to see whether the plaintiffs of Title Suit No. 164 of 1967 has been able to prove that partition had taken place between the parties in the year 1920.
11. It appears that the plaintiffs of Title Suit No. 164 of 1967 have brought on record overwhelming oral as well as documentary evidence. First of all, I would like to discuss the documentary evidence of the parties.
Page 2680
12. In support of partition, the plaintiffs of Title Suit No. 164 of 1967 have brought a bunch a registered document ranging from 1921-1963 to show that just after the partition in the year 1920, Jagdeo Rai started dealing with the property separately and in process he executed several sale deeds in favour of several persons and also purchased lands in his name and in the name of his sons from several persons through registered sale deeds. These documents are Exhibit-4 to 4/Z. Exhibit-4 is the sale deed dated 17.8.1954 executed by Jagdeo Rai in favour of Ramdhari Sah and Sumari Sah with respect to the lands of Khata No. 20, Plot No. 1632 and 1633. Exhibit-4/A is the sale deed dated 13.10.1936 executed by Khublal Rai in favour of Jagdeo Rai with respect to 3 Kattha 17 dhur land of Khata No. 20, Plot No. 1632 and 1633. Exhibit-4/B is the sale deed dated 17.8.54 executed by Jagdeo Rai in favour of Gauri Shanker Mahto with respect to 3 Kattha 15 dhur of land of Khata No. 163, Plot No. 1644. Exhibit-4/C is the sale deed dated 22.8.1950 executed by Jagdeo Rai in favour of Bhagwat Rai (son of Jagdeo Rai) with respect to the land of Khata No. 249, Plot No. 1031 area 17 Kattha 3 dhur. Exhibit-4/D is the sale deed dated 4.1.1947 executed by Ram Bahadur Rai in favour of Jagdeo Rai with respect to the land of Khata No. 21, Khesra No. 2269. Exhibit-4/E is the sale deed dated 27.8.63 executed by Anant Singh in favour of Bhagwat Singh and Ram Charitra Singh son of Jagdeo Singh. Exhibit-4/F is the sale deed dated 4.6.1952 executed by Anant Singh in favour of Bangali Singh, son of Jagdeo Rai with respect to the land of Khata No. 191, plot No. 1662 area 13 Kattha 6 dhur. Exhibit-4/G is the sale deed dated 3.6.1944 executed by Amar Deo Rai in favour of Daroga Rai with respect to the lands of plot No. 1403, 1408 and 1401 of Khata No. 30. Exhibit-4/H is the sale deed dated 20.10.54 executed by Mahadeo Rai in favour of Bhagwat Singh, Bangali Singh and Ram Khatri Singh, sons of Jagdeo Rai with respect to the lands of Khata No. 6, plot No. 1821. Exhibit-4/I is the sale deed dated 4.3.1944 executed by Baldeo Mahto in favour of Daroga Rai, son of Jagdeo with respect to Khata No. 171, plot No. 1091. Exhibit-4/J is the sale deed dated 6.6.1951 executed by Most. Bhagnasho Kunwar in favour Bhagwat Rai son of Jagdeo Rai with respect to the land of Khata No. 99, plot No. 1824 area 8 Kattha 8 dhur. Exhibit-4/K is the sale deed dated 6.6.1951 executed by Most. Bhagnasho Kunwar in favour of Bangali Rai son of Jagdeo Rai with respect to the lands of Khata No. 99, Plot No. 1824 area 8 Kattha 8 dhur. Exhibit-4/L is the sale deed dated 18.6.1921 executed by Raghunandan Rai and others in favour of Daroga Rai son of Jagdeo Rai. Exhibit-4/M is the sale deed dated 17.4.1943 executed by Girdhari Mahto and others in favour of Daroga Rai with respect to the lands of Khata No. 169, Khesra No. 2251 , 2252. Exhibit-4/N is the sale deed dated 26.2.1937 executed by Bhikhari Rai in favour of Jagdeo Rai. Exhibit-4/O is the sale deed dated 1.5.1933 executed by Niyamat Mian in favour of Jagdeo Rai. Exhibit-4/P is the sale deed dated 19.1.1937 executed by Daroga Lal in favour of Jagdeo Rai. Exhibit-4/Q is the sale deed dated 9.5.1934 executed by Ram Bahadur Rai in favour of Jagdeo Rai. Exhibit-4/R is the sale deed dated 23.6.1937 executed by Ram Dhyan Rai in favour of Jagdeo Rai. Exhibit-4/S is the sale deed dated 10.1.39 executed by Khublal Rai in favour of Jagdeo Rai. Exhibit-4/T is the sale deed dated 14.1.39 executed by Thakur Rai in favour of Jagdeo Rai. Exhibit-4/U is the sale deed dated 9.2.1940 executed by Brahamdeo Rai and Rajvanshi Rai in favour of Jagdeo Rai. Exhibit-4/V is the sale deed dated 12.5.1939 executed by Mahendra Sah in favour of Jagdeo Rai. Page 2681 Exhibit-4/W is the sale deed dated 12.3.1928 executed by Thakur Rai in favour of Daroga Rai. Exhibit-4/X is the sale deed dated 26.2.1937 executed by Bishuni Mahto in favour of Jagdeo Rai. Exhibit-4/Y is the sale deed dated 23.4.1932 executed by Ram Bahadur Rai in favour of Daroga Rai son of Jagdeo Rai. Exhibit-4/Z is the sale deed dated 31.7.1931 executed by Dharichan Kunwar and Most. Mania Kunwar in favour of Daroga Rai.
13. The above mentioned sale deeds establish beyond doubt that since the year 1921, the original plaintiff Jagdeo Rai (Jagdeo Rai is now dead but his heirs are on record) was purchasing the lands in his individual name and in the name of his sons and was also selling the property in individual capacity. On perusal of the above mentioned documents, I do not find any material to come to the conclusion that Jagdeo Rai had transferred the joint family property in the capacity of Karta of the joint family or that he had purchased the property in the capacity of Karta of joint family from the joint family fund. I have already stated above that the transactions ranges from the year 1921-1963 and there is nothing on record that the plaintiff of Partition Suit No. 345 of 1967 had ever raised any protest with Jagdeo Rai as to why he was selling the family property individually and why he was purchasing the property in his individual name or in the name of his sons alone. This circumstance goes to establish that since the parties were separate from before the year 1921, as such, there was no occasion for the plaintiffs of Partition Suit No. 345 of 1967 to raise objection on the above mentioned transactions. I, therefore, hold that the above mentioned sale deeds fully establishes this fact that the partition had taken place before 1921, maybe in the year 1920 as alleged by the plaintiffs of Title Suit No. 164 of 1967.
14. Another document which has been brought on record on behalf of the plaintiffs of Title Suit No. 164 of 1967 in support of partition is Exhibit-11 which is a mortgage deed dated 1.6.1948 executed by P.W.36, Zalim Mahto, in favour of Sukhdeo Rai. This document has been brought on record to show that in the year 1948 Sukhdeo Rai was also dealing his affairs separately and that is why mortgage deed was executed by Zalim Mahto in favour of Sukhdeo Rai and not in favour of Jagdeo Rai, who according to the case of the plaintiffs of Partition Suit No. 345 of 1967 was the Karta of the joint family. It is true that some discrepancy has cropped up in the evidence of P.W.36 regarding this fact that at the instance of Jagdeo Rai, the mortgage deed was executed in the name of Sukhdeo Rai but in my view much importance can not be given to the said statement of P.W.36 in view of the fact that if Jagdeo Rai was the Karta of the joint family at that time then the document might have been executed in his name. I am, therefore, of the view that this document establishes separate transaction of immovable property by Sukhdeo Rai.
15. Another document is Exhibit-13 which is Ekrarnama dated 7.2.1961 executed by Sukhdeo Rai granting receipt of receiving Rs. 1261.75 paisa. from Jagdeo Rai of his share of compensation awarded by the concerned authority for acquisition of the ancestral property of Jagdeo Rai and Sukhdeo Rai. The contents of this document shows that Sukhdeo Rai has admitted that in the year 1920 itself partition had taken place between him and between Jagdeo Rai and Mangni Rai. The execution of Exhibit-13 is admitted by D.W.7, Banka Prasad, who had deposed at para 3 of his cross-examination that Exhibit-13 bears his signature. It appears that his signature Page 2682 was marked as Exhibit-8 on his admission and identification. In the same para, this witness had also admitted that there was a thumb impression on the document from before he put his signature and thus, this admission of D.W.7 falsifies his statement in examination-in-chief that he had put his signature on a blank sheet of paper. D.W.16 Indradeo Mahto has also admitted that Ekrarnama bears the thumb impression of Sukhdeo Rai, although he has stated that Jagdeo Rai had taken the thumb impression of Sukhdeo Rai on a blank sheet of paper. This statement of D.W.16 does not inspire confidence. The evidence of P.W.1 Syed Eqbal Taiyab Hussain, who was examined as hand writing expert, and the report submitted by him (Exhibit-1) establishes beyond doubt that Exhibit-13 bears the thumb impression of Sukhdeo Rai. Besides that execution of Exhibit-13 was also supported by P.W.17 Sheonath Prasad. Thus, the execution and genuineness of Exhibit-13 has fully been established from the above referred evidence and this document fully establishes that the partition between the three sons of Bujhawan Rai had taken place in the year 1920.
16. On behalf of the defendants of Title Suit No. 164 of 1967, one registered sale deed dated 2.6.1952 executed jointly by all the three brothers, namely, Jagdeo Rai, Mangni Rai and Sukhdeo Rai has been brought on record to show that in the year 1952 all the three brothers were joint and that is why they executed joint sale deed in respect of the ancestral property. This document has been marked as Exhibit-C but I am of the view that this document does not help the plaintiffs of Partition Suit No. 345 of 1967, rather, it helps the plaintiffs of Title Suit No. 164 of 1967 as the contents of the document does not indicate that on 2.6.1952 when the sale deed was executed all the three brothers were joint and Jagdeo Rai was the Karta of the family. Had it been correct that in the year 1952 the family was joint and Jagdeo Rai was the Karta of the family, then Jagdeo Rai could have easily executed the sale deed in the capacity of Karta. Thus, the execution of this sale deed (Exhibit-C) by all the three brothers also establishes that on 2.6.1952 they were not the members of a joint Hindu family, rather, all the three brothers had defined share in the ancestral property and that is why they jointly executed the sale deed. Thus, Exhibit-C also supports the case of partition.
17. Another document has been brought on behalf of defendants of Title Suit No. 164 of 1967 in respect of jointness. This document is the voter list which has been marked as Exhibit-B. The document shows that the parties have got common residence but I am of the view that it has been rightly held by the trial court that common residence of the parties is not inconsistent with severance of joint status and, as such, I am of the view that the trial court has rightly not given much importance to this document.
18. On the basis of the above discussions, I have come to the conclusion that there are overwhelming documentary evidence on record in support of this fact that in the year 1920 itself the partition had taken place between the parties and I am of the view that the plaintiffs of Title Suit No. 164 of 1967 has successfully discharged the onus of proving partition by adducing sufficient and reliable documentary evidence.
19. As regards the oral evidence, I find that the evidence of P.W.4 Basudeo Singh, P.W.10 Abdul Rahim, P.W.13 Satya Narain Mishra, P.W.18 Mathura Raut are on the point of partition. It is true that there are some discrepancies in their evidence but in view of the overwhelming documentary evidence on the point of partition these discrepancies are of not much value. It appears that in support of joint possession Page 2683 the defendants of Title Suit No. 164 of 1967 had examined several witnesses, namely, D.W.1 Sheo Ratan Baitha, D.W.3 Sajawal Singh, D.W.4 Thakur Singh, D.W.5 Mahadeo Mahto, D.W.6 Sheo Gulam Mahto, D.W.8 Magister Singh, D.W.9 Thakur Singh, D.W.10 Ramdeni Sah, D.W.11 Satyanarain Singh, D.W.13 Bishun Singh, D.W.17 Hari Nandan Singh, D.W.19 Ram Dayal Singh, D.W.20 Subedar Singh and D.W.21 Hankari Devi but their evidences were not found trustworthy by the trial court for which the trial court has given cogent reason. I am also of the view that in view of the overwhelming documentary evidence on the point of partition the trial court has rightly disbelieved the oral evidence adduced on behalf of the defendants of Title Suit No. 164 of 1967.
20. Thus, on the basis of the discussions made above, I find and hold that there was no unity of title and unity of possession between the parties with respect to the suit land and there was complete partition by metes and bound between the parties in the year 1920 itself. Point No. I is answered accordingly.
Point No.: II
21. Now, it has been established that in the year 1920 itself the joint family of the parties had disrupted and there was complete partition by metes and bounds between the parties as such I do not find any difficulty in accepting the case of the plaintiffs of Title Suit No. 164 of 1967 that in the said partition the two sons of Bujhawan Rai, namely, Jagdeo Rai and Mangani Rai jointly got 2/3rd share, whereas, Sukhdeo Rai got 1/3 share in the ancestral property and, as such, Sukhdeo Rai was only entitled to get 1/3rd share in the ancestral property and in the subsequent acquisition he will have no share. This is also because of the fact that I cannot make out a third case and I have to accept either the case of partition as stated by the plaintiff of T.S.No. 164/67 or the case of jointness as stated by the defendants of the said suit. Since I have accepted the case of the plaintiffs of Title Suit No. 164 of 1967 with regard to the partition and allotment of 2/3rd share jointly to Jagdeo Rai and Mangani Rai and 1/3rd separately to Sukhdeo Rai and, as such, I hold that Sukhdeo Rai was entitled to get only 1/3rd share in the ancestral property as shown in Schedule II of the written statement of Partition Suit No. 345 of 1967. But, it appears that the gift deed was executed by Sukhdeo Rai in excess of his share and, therefore, the gift in excess of 1/3rd share allotted to Skukhdeo Rai in the ancestral property can not be held valid.
22. Under such circumstances, I am of the view that the trial court has rightly held that the gift deed executed by Sukhdeo Rai in excess of his 1/3rd share in the ancestral property is not valid but to the extent of his 1/3rd share it is valid and I upheld this finding of the trial court. Point No. II is, accordingly, decided.
23. In the result, I do not find any merit in both the appeals and the same are hereby dismissed.