Patna High Court
Tulsi Sao And Ors. vs Tribhuwan Sao And Ors. on 7 September, 1998
Equivalent citations: 1999(1)BLJR223
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
JUDGMENT Prasun Kumar Deb, J.
1. This appeal has been preferred by the above named plaintiffs-appellants against the judgment and decree dated 5.2.86 and 15.2.86 respectively passed in Partition Suit No. 9/64 of 1983/85 by the then 3rd Additional Subordinate Judge1 Hazaribagh, whereby and whereunder the plaintiffs' suit for partition claiming two anas shares in the suit property contained in Schedule-B of the pLalnt has been dismissed.
2. To approach the facts of the case, geneaology of the parties is essential to be reiterated. Such geneaology has been described in the Schedule-A of the pLalnt, which is admitted by both the parties. The same is being reproduced below:
Bhatan Teli /
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/ / / /
Delo Teli Jitan Teli Hardeyal Teli (D) Meghu Teli (D)
/ |
|
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/ / / |
Charo Sao (D) Khublal Sao Naro Jao (D) |
wfie Most. Sonia (Defdt. No.6)
(Defdt. No. 3) --------------------------------------- |
| / /
|---------------------------------------------------------- |
| / / |
| Chohan Sao Nagia Devi |
| (Defdt. No. 7) (Defdt. No. 8) |
| |
---------------------------------------------------------- |
/ / / / |
Tribhuwan Sao Ramu Sao Smt. Umni Devi Smt. Rohni Devi |
(Defdt No. 1) (Defdt. No. 2) (Defdt. No. 4) (Degdt. No. 5) |
|-----------
|
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/ / / /
Janki Sao (D) Nemu Sao Bulak Sao Jagal Sao
wife Most. Girwa | wife Most. (Defdt. No. 17)
(Defdt. No. 10) | Pokhni |
/ | (Defdt. No. 14) |
--------------------- | |
| |
/ / | |
------------------------- | |
/ / |
Ganpat Sao Most. Chamni | |
Defdt No. 9) (Defdt No. 11) |
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| ------------------------------------------------------
| / / / /
| Jaglal Sao Ambo Sao Most. Talia Smt. Satia
| (Defdt. No. 12) (Defdt. No. 13) (Defdt. No. 15) (Defdt. No. 16)
|
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/ / / / / / Tulsi Sao Daglal Sao Teka Sao Chulni Devi Dharmi Devi Balia Devi (Defdt. No. 1) (Pltf. No. 2) (pltf. No. 3) (Pltf. No. 4) (Pltf. No. 5) (Pltf. No. 6)
From the above table, it is clear that the plaintiffs are the lineal descendants of Nemu Sao, one of the four sons of Megho Teli. The admitted fact of the parties is that the original raiyat Bhatan Teli had four sons and before the survey settlement was made, his two elder sons, namely, Dalo Teli and Jitan Teli got themselves separated from the joint property and they were given separate lands. Dalo Teli got the land under Khata No. 36 of village Pipra Pargana Chai P.S. Chouparan, District Hazaribagh, where the suit Khata No. 69 situates. Similarly, the other son, Jitan Teli, got land in khata No. 34. Accordingly, on their separation from the joint family, in the cadestral survey settlement Khata No. 69 i.e., suit khata had been issued in the name of two brothers, namely, Hardayal Teli and Megho Teli. According to the plaintiffs, for about 150 years, they remained joint both in mess and property but afterwards, their mess was separated and for convenience sake the two brothers started possessing the lands also separately, but there was no partition between the two brothers and rents were being paid jointly. Both Megho Teli and Hardeyal Teli died and their heirs also started possessing the lands as per the convenience, as was done by their fathers. Defendant Nos. 1 to 8 are the descendants of legal heirs of Hardeyal Teli and the plaintiff and defendant Nos. 9 to 17 are the lineal descendants and heirs of Megho Teli. As per succession, defendant Nos. 1 to 8 have the half share of the suit land in khata No. 69 jointly recorded in the names of Hardeyal Teli and Meghu Teli. Although, the parties were separate in mess and also in cultivation but there was no partition by metes and bounds and the plaintiffs being the sons of Nemo Sao have two anas shares in the suit property and they wanted to get shares partitioned and, as such, filed the present suit.
3. There was also some purchase in between the shareholders and the plaintiffs have also purchased some lands from Bulak Sao, the predecessor of some of the defendants inheriting form Hardeyal Teli. Two sets of the defendants have filed separate written statement. Defendant Nos. 2, 6, and 7, who are the sons of heirs of Hardeyal Teli, in their written statement supported the plaintiffs' case. They further mentioned that the lands separately recorded in the name of Jitan Teli in Khata No. 34 of the village was the exclusive land of Jitan Teli and in his old age he executed a registered Will on 29.4.1936, in favour of Neman Sao, predecessor of the plaintiff out of live and affection and after the death of Jitan Teli, Neman Sao came in possession of the land in khata No. 34 and continued in its possession exclusively all along till his death and after the death of Neman Sao, Khata No. 34 also came in possession of the plaintiffs and the other defendants of this suit i.e., other heirs of Megho Teli have got no right, title and interest or the possession of the land of Khata No. 34. The contesting defendants are the defendant Nos. 1, 3 to 5, 9, 11 to 13 and 15 to 20. In their written statement, they have taken usual pleas such as the suit is misconceived and has been filed on false allegation, that there is no cause of action and that the suit is barred by law of limitation, and the principle of waiver, and estoppel, that the suit is bad for mis-joinder and nonjoinder of the parties and that the same is not maintainable in it present form. Their case is that Hardeyal Teli and Meghu Teli separated and partitioned their land of khata No. 69 during their life time and it is not a fact that Hardeyal Teli and Megho Teli died in the jointness without partition in the suit land. The sons of Hardeyal Teli cultivated the land of khata No. 69, which was allotted to Hardeyal Teli in partition and that the defendant Nos. 1 to 8 inherited the land allotted to Hardeyal Teli on amicable partition with Meghu Teli and that they are in separate possession of the same. It was totally denied that there was unity of title between Meghu Teli and Hardeyal Teli. According to these defendants, Meghu Teli and Hardeyal Teli had amicably partitioned their land in half and half share during their life time and that after their death also their descendants possess the land as per their shares in the suit khata. It was further contended that Megho Teli's son were also partitioned during the life time of Meghu Teli and the three sons of Megho Teli in such amicable partition got the lands under Khata No. 69, while Nemo Sao, the predecessor of the plaintiffs got the land of khata No. 34 as Jitan Teli during his life time had re-united with the joint family and started living with Megho Teli and by love and affection the lands were also relinquished in favour of Nemo Sao, the predecessor of the plaintiffs and hence Nemo Sao had not been given any land at the time of amicable partition of the suit khata.
4. On the basis of the pleadings of the parties, following issues were framed:
1. Have the plaintiffs got any cause of action for the suit?
2. Is the suit maintainable in its present form?
3. Is the suit barred by law of limitation, waiver and estoppel?
4. Is the suit bad for mis-joinder and non-joinder of the parties?
5. Are the plaintiffs entitled to get a decree for partition or if so, to what extent?
5. As regards issue Nos. 3 and 4, there was no pressing of these issues before the Court below and these issues have also not been pressed before this appellate Court. The vital issue being issue No. 5 has been decided by the learned Court below by the impugned order in favour of the contesting defendants and against the plaintiffs and issue Nos. 1 and 2 being dependant on the decision of issue No. 5 have also been decided against the plaintiffs and, as such, the suit has been dismissed with costs.
6. The geneaology and inheritance, as contended by the plaintiffs, has been admitted by the defendants. The plaintiffs' contention has been supported by the heirs of Hardeyal Teli but plaintiffs' own uncle i.e., the other heirs of Megho Teli except that all the plaintiffs, have heavily contested the suit.
7. Mr. P.K. Prasad, appearing for and on behalf of the plaintiffs-appellant has attacked the impugned judgment mainly on legal aspect. His first contention is that when any coparcery property being owned by the Hindu, then the presumption remains that it was a Hindu joint family unless the contrary could be proved. The learned Court below has deviated from such presumption by resorting on the amicable partition being made between the predecessor of the parties and then amongst the parties themselves. Such amicable partition if not proved by the defendants, then the presumption of jointness must prevail and according to Mr. Prasad, the defendants have miserably failed to prove such amicable partition and the amicable partition relied by the learned Court below on oral evidence goes against the documentary evidence being filed in the case. His second contention is that the story of re-union to the joint family by Jitan Teli has been totally misconstrued by the learned Court below. If there was re-union, then such re-union is to the joint family and not to a particular inheritor. In that score also, according to Mr. Prasad, learned Court below has committed error or law and proceeded to decide the suit on wrong notion. His third contention is that the Will (Exhibit3) executed by Jitan Teli in favour of the predecessor of the plaintiffs can not be thrown out only on the ground that there was no proof of probate of the same when it was an admitted fact by the contesting defendants that the property of Jitan Teli had been given to Neman Sao @ Nemo Sao and that during his life time Neman Sao used to possess the property. Fourthly, it has been contended by Mr. P.K. Prasad, that the defendants' plea although not specifically urged regarding the relinquishment of the share of Neman Sao in the suit khata due to getting of lands of Jitan Teli, bus such relinquishment can not be legally construed unless there is registered" deed regarding relinquishment.
8. Mr. B.V. Kumar, appearing for and on behalf of the defendants-respondents has supported the impugned judgment and made an attempt to controvert the submission of Mr. P.K. Prasad, relying on the judgment of the Patna High Court as reported in A.I.R. 1991 Patna 94 wherein it was held that jointness of the Hindu family becomes weaker as the days go on and such presumption being a weaker one, it should be construed on the circumstances of the case and rigidity of presumption should be relaxed when the shareholders become more and there was specific possession between the co-sharers.
9. Let me discuss the points one by one as submitted. The persons who are mainly interested regarding partition i.e., heirs of Hardeyal Teli have not contested the suit rather they have supported the case of the plaintiffs. The admitted position remains that Dalo Teli and Jitan Teli had no interest in the suit khata. So, even if their lands have been given to any of the co-sharers, the same can not affect the share of any of the co-sharers in the suit khata. The jointness of the Hindu family is a strong presumption as per the Hindu Law and if any body wants to deviate from it, then the burden lies on that person, who asserts that the property did not remain joint. Here, in the present cases, the suit khata was issued in the name of Megho Teli and Hardeyal Teli and the same remained so till now and rents were being paid jointly in the name of deceased Megho Teli and Hardeyal Teli. It is only stated that the co-sharers contributed in payment of rent but the fact remains that there was jointness of the property and the sharers had not been properly defined. One rent receipt shows that half of the amount had been paid by Hardeyal Teli's heirs and according to their shares, they might have paid so but that alone does not prove that their share of property have been defined by amicable partition, when that fact has been denied and the plaintiffs' case has been supported by the heirs of Hardeyal Teli. So, regarding the payment of half rent by Hardeyal Teli, only by a single rent receipt, it can not break the presumption of jointness when the party, who can claim so i.e., heirs of Hardeyal Teli has supported the case of the plaintiffs that the property remained joint although separate possession is there for convenience-sake. The contesting defendants' case is itself a confusing one. On one hand, they claimed that there was partition between Hardeyal Teli and Megho Teli during their life time, on the other hand, they claimed that there was re-union in the joint family by Jitan Teli. Such re-union has been stated to be a partial one i.e., re-union only with Megho Teli. Such sort of re-union by the separate heir in the joint family partially is unknown in the Hindu law. If Jitan Teli has joined then his property should also be included in joint Hindu family which was owned by Hardeyal Teli and Megho Teli on the death of Bhatan Teli. So, inclusion of Jitan Teli or re-union could not be proved by the defendants rather it was an admitted fact that as Jitan Teli was a issueless one during his old age he came to live with Nemo Sao and his property was never united either with Nemo Sao or Megho Teli or Hardeyal Teli. Division of the property remained so as per the evidence comes when it was stated that Jitan Teli's land was being given to Nemo Sao, although property of Jitan Teli was never reunited with the joint Hindu family. If" he had come to lire with Nemo Sao and Meghu Teli, he came due to old age and being looked after by his brother and brother's son and then by a Will he had bequeathed his property in favour of the predecessor of the plaintiffs Nemo Sao. So, that property in no case be construed in the joint family property even for the purpose of amicable partition.
10. Thus, from the defendants' case itself there remains strong doubt as to the division of property amongst the co-sharers amicably. Oral evidence will be discussed later on, but from the main feature of the defence case, it is not inferred about the division of property. Firstly, if the property was divided during the life time of Meghu Teli and Hardeyal Teli, then definitely, they would have made attempts to get their property separated in the Zamindari Serista and then to the State of Bihar. Again, it is stated that Jitan Teli had re-united to the joint family but that reunion was stated to be partial in respect of Meghu Teli or his son Nemo Sao alone, which is unknown in the Hindu Law. The unity of title is disrupted even by amicable partition if it could be shown that the co-sharers existing at that time have got definite and distinctive shares. Nowhere either in the written statement or in the evidence it could be shown that there was definite shares of each of the co-sharers. If the distinctive and definite shares are not there, then separate possession by the co-sharers for the convenience purpose can to infer of amicable partition by metes and bounds. The re-union as contemplated by the defendants has also no legal sanctity on the face of it as it was the case of both the parties that the property of Jitan Teli had been given to Nemo Sao, the predecessor of the plaintiffs and not to any body else, which means that Jitan Teli's property was never re-united to the joint family property. Again, it is the case of the defendants that after the amicable partition between Hardeyal Teli and Meghu Teli during their life time, Meghu Teli during his life time had divided his share of property amongst his four sons and that Nemo Sao had not been given any share in the suit khata No. 69. Such amicable partition leaving aside a shareholder from the property is also against the factum of amicable partition. If Nemo Sao had been left out form the ancestral property, then the same means relinquishment of his share in the suit property and such relinquishment can only be done by a registered document is but there is nothing of this sort in the present case. Thus, the defendants' case even on legal aspect regarding amicable partition by metes and bounds falls through.
11. Learned Court below has given much stress on the evidence of P.W. 1 to the effect that there was separate possession by the co-sharers. AT the very instance, the plaintiffs' case is that they were separated in the mess and also in the property and they used to cultivate their separate land on convenience alone and not on amicable partition. Nowhere P.W. 1 has stated that there was any partition except that the possession has been shown by Megho Sao between his four sons during his life time and it was specifically stated that there was no definite share of each of the shareholders. On the other hand, the defendants' witnesses although have stated regarding amicable partition between Meghu Teli and Hardeyal Teli, but no date or the year could be stated by any of the witnesses although two witnesses have supported the same that they were present at the time of such amicable partition and in the cross-examination, these witnesses also said that there was no definite share of each of the co-sharer. I have already stated that the jointness of the Hindu family can be disrupted by amicable partition if the shareholders have got definite share by amicable partition. There is no year of partition and date of partition amongst Meghu Teli and Hardeyal Teli. Similarly, there is also no date or the year of partition between the four sons of Meghu Teli. The oral evidence regarding separate possession of the shareholders in no case breaks the presumption of jointness until and unless it could be shown that by the long process the parties were possessing definite shares in the suit property. That there was no partition could be inferred form the very fact that the predecessor of the plaintiffs had not been given any share in the suit property. Thus, I find that the learned lower Court has committed error of law in giving much stress on separate possession of the co-sharers inferring amicable partition by metes and bounds. From the very case of the defendants when Nemo Sao had been left out for partition in the suit property and when there is no relinquishment by Nemo Sao about his share, there can not be any presumption of amicable partition. Hence, this point formulated above is decided in favour of the plaintiffs and the observation and decision arrived at by the learned Court below is held to be illegal, improper and not justified.
12. On the second point, as formulated above, I have already stated in the foregoing paragraphs that there is wrong notion by the learned Court below regarding re-union of Jitan Teli in the joint Hindu family. Separate co-sharers may re-unite but the re-union is always to the whole of the joint family and not to a particular sect or a particular shareholder. Re-union happens only in exceptional cases and the person, who asserts such re-union must prove it to hilt. In the present case, there is connection of the defendants that Jitan Teli had re-united but according to them, such re-union was with Nemo Sao alone, which is against the principle of law. It further appears from the defence case itself that Jitan Teli's share remained always distinct till his death and that share had been given to Nemo Sao out of love and affection. When his share had not been given to the other shareholders then it can not be construed as a re-union. In this connection , Bhagwan Dayal (since deceased) and thereafter his heirs and legal representative Banggopal Dubey v. Most. Reoti Devi (deceased) and after her death Most. Dayavati her daughter may be referred to. If there was re-union of Jitan's share in khata No. 34, then that land ought to have been amulgamated for the purpose of partition between the co-sharers or the descendants of Hardeyal Teli and Meghu Teli, but that is not the case of the defendants. So, the case of re-union, as stated by the defendants, have got no legal sanctity and it was only to deprive the plaintiffs from the suit property. Jitan Teli was a issueless and during his old age he came to live with Megho Teli and be bequeathed his property in favour of Nemo Sao out of love and affection as Nemo used to look after him during his old age. That can also be construed form the Will, which has been exhibited in the case executed by Jitan Teli long back in the mid 30's. From that document alone, it proves that share of Jitan Teli was never re-united but it remained a distinct property during his life time and the same was bequeathed in favour of Nemo Sao. Thus, the story of re-union and that the property is being given to Nemo Sao, predecessor of the plaintiffs at the time of partition is totally a myth.
13. About the third point formulated, it is true that a Will has got no much value for the purpose of possession etc. until and unless the same is being probated. But Exhibit-3 at least shows that the property of Jitan was distinct during his life time and it was never included within the joint Hindu family and that there is evidence to the effect that during the life time of Jitan Tell, Nemo Sao used to possess the same and that out of love and affection during his life time, he expressed his intention to give his property in favour of Nemo. In the Exhibit-3 khata No. 34 has been included only, we are not considered with khata No. 34 in this suit as the same is outside the purview of the suit property. Only for analogy-sake regarding re-union etc. and inclusion of that property for the purpose of partition had been brought, but the factual aspect goes against the defendants' case,. At least, on the basis of Exhibit-3, it appears that the property was distinct and that the same was given to Nemo Sao by Jitan Teli during his life time. Mr. B.V. Kumar, tried to impress this Court, as was done before the Court below, on the oral evidence adduced from the side of the plaintiffs. I have already mentioned that the plaintiffs in the evidence have never stated about the amicable partition by metes and bounds but in the pLalnt itself, they have stated about the separate possession in the property. He has also referred to the different sale deeds being executed in the case between the co-sharers. There is no bar in selling of property if it is within his share to the intending purchaser of the joint property. Selling by a co-sharer with definite boundaries can not infer a partition between the co-sharers. It may only suggests of separate possession. If other evidence is there regarding amicable partition, then such document of sale or purchase may come in aid as the evidence of amicable partition. I have already discussed that the defendants have failed to prove amicable partition either on oral evidence or on any document and, as such, such sort of sale deeds can not give any presumption regarding disruption of the joint Hindu family.
14. Regarding the fourth point formulated, I have stated in the foregoing paragraphs that Nemo Sao's share in no case be construed as relinquishment in the suit property as relinquishment can only be done by a registered document., although the same plea of relinquishment has not been specifically made from the side of the contesting defendants. But when they say that the plaintiffs' predecessor Nemo Sao had not received any share in the suit property for. getting the land of Jitan Teli, the same suggests of relinquishment of his legitimate share in the suit property and such relinquishment can only be done by a document, that too, a registered document.
15. Another point has been raised by Mr. B.V. Kumar, that the partition suit has been filed by the plaintiffs without including their purchased share from Bulak Sao and, as such, a partial partition in the suit property is not maintainable. Against this, Mr. P.K. Prasad, for and on behalf of the plaintiffs-appellants has submitted that the plaintiffs have claimed only two anas share by partition in the suit property which is from the ancestral property. Whatever they have purchased from Bulak Sao shall only be stepping into the shoes of the heirs of Bulak Sao; who would get separate share on partition and that would not effect in any way while making the allotment in favour of the plaintiffs on partition. I find that in the present case that the plaintiffs' only grievance is of not getting any share in the suit property, although they are the legitimate co-sharers. In that view of the matter, it can not be said that partial partition has been sought for by the plaintiffs. Even if it is construed as a partial partition then also the same is not barred under the law. The plaintiffs have come up for partition of their ancestral share. About the purchased share from other co-sharers, they would automatically get it as they remained in possession of it on separate Takhta to be made at the time of final decree.
16. Thus, from the above, I find that the plaintiffs-appellants have got a good case for getting the decree in the suit and the dismissal of the suit by the learned Court below is improper, illegal and hence same is set aside. The suit is decreed preliminary with costs. Thus the appeal is allowed with costs.