Patna High Court
Kaulesari Singh And Ors. vs Ambika Dutt Singh And Ors. on 13 February, 1950
Equivalent citations: AIR1950PAT365, AIR 1950 PATNA 365
JUDGMENT Narayan, J.
1. This is a plaintiffs' appeal arising out of a suit for partition. One Bisun Singh had three sons, Kishun Singh, Narain Singh and Bharath Singh. Plaintiff 1 is the son of Kishun Singh, and plaintiffs 2 and 3 are the sons of plaintiff 1. Defendant 12 is the only surviving representative of the branch of Bharath Singh, he being Bharath'a grandson. Defendant 4 is the widow of Narain Singh and defendants 1, 2 and 3 are the sons of Narain Singh. The other defendants are the grandsons of Narain Singh. The plaintiffs' case is that the family is still joint, that Narain was the karta of the family till his death which took place in the year 1938, and that after his death, defendant 1 has been the karta. It is further alleged that Narain was in Government service and acquired properties in the name of his wife bat with funds belonging to the joint family and that as such the properties standing in the name of defendant 4 are liable to be partitioned.
2. The defendants' main contentions are that there was a partition of the joint family properties in the year 1337, which corresponds to the English calendar year 1929, and that the properties standing in the name of defendant 4 are per khas properties with which the family has no concern. Some orchards and homestead lands are still admitted to be joint.
3. The learned Subordinate Judge has dismissed the suit, his finding being that the properties standing in the name of defendant 4 are per khas properties and that there was a partition of the joint family properties in the year 1331.
4. Mr. Harinandan Singh, who represented the appellants before us, has not challenged the findings of the Court below that there was a partition of the joint family properties in the year 1337 and that the properties standing in the name of defendant 4 are her personal properties with which the joint family has got no concern. But he has pressed for a partition of the properties, which have been shown in Schedule C of the written statement, as still joint between the parties. Among the properties mentioned in Schedule C of the written statement are a phulwati having an area of .51 acres and two orchards, the area of one of which is .31 acres and of the other .10 acres. There is no reason why these properties should not be partitioned, and Mr. Da on behalf of the respondents has agreed to the partition of these properties. The controversy now narrows down to this as to whether the houses and the homestead lands should be partitioned or not. They are all described in Schedule C of the written statement, and along with the written statement the defendants have filed a map indicating the rooms in the possession of the different branches of the family and the joint aahan and khand lands. The argument of Mr. Singh has been that there was no partition of the houses and the homestead lands and that in this suit a partition of these properties should be ordered. We find it very difficult to agree with Mr. Singh that there was no partition of the houses. It would appear from a perusal of the plaint and the evidence adduced by the plaintiffs that the main contention of the plaintiffs in this suit has been that they are entitled to a share in the properties, standing in the name of defendant 4. If the plaintiffs' allegation on the most important question of fact involved in this case has been found to be untrue it is difficult to hold that though there was a partition of all the properties, specially the bakaat and the kast lands, there has been no partition of the houses up till now. The principle is that whenever a partial partition is proved or admitted to have taken place, the presumption arises that there has been an entire partition with reference to all the rights and all the properties. It was held by a Division Bench of this Court in : Mukhram Rai v. Chandradeep Rai, A. I. R. (23) 1936 Pat. 68 : (159 I. C. 453), that where parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time, the Court might well presume that the joint lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned. The appellants learned counsel, during the course of his argument, pointed out that the map filed with the written statement shows that the plaintiffs have not got sufficient number of rooms and that at least one of the branches has been given four rooms instead of three. But another partition cannot be ordered merely on the ground that apparently each branch has not got an equal number of rooms. The presumption is very strong in this ease that there was a partition of all the family properties which could be partitioned, and the evidence adduced by the defendants has been found to be distinctly preferable to that adduced by the plaintiffs. [After referring to certain evidence his Lordship proceeded;] We are, therefore, of the opinion that the housed were also partitioned in the year 1337 and that no fresh partition can be ordered of the house properties.
5.But admittedly there are two sahans, one of which has been described as 'sahan angan pharikain' and the other as 'aahan Pharikain' which are still joint, besides, a bhand and a dalan. There may be some force in the contention of Mr. De that 'sahan angan' cannot easily be divided. But on the record, we find no satisfactory explanation as to why these properties were left joint. Mr. De hag cited an authority of the Calcutta High Court in Jyotish Chandra v. Radhika, Chandra, 60 Cal. 1078 : (A. I. R. (20) 1933 Cal. 892), in which case on an agreement between the parties, some properties were left joint. It is not the defendants' case, and it is not at all established by evidence, that there was an express agreement entered into the parties for leaving these properties as joint. We, therefore, do not consider it proper to reject the plaintiffs' claim for partition with regard to the sahans, angan and the dalan. Of course, it will be seen at the time of the final decree whether a partition of all these sahans, angans, khands, and dalan is possible or not, and it will be open to the Subordinate Judge at the time of the passing of the final decree to adjust the equities between the parties by making one party pay compensation to the other in case it is not found possible to partition these properties. This appeal, therefore, succeeds in part and there will be a decree for partition of the properties which are admittedly still joint.
6. The appeal is allowed in part and the decision of the Subordinate Judge is modified to this extent that there will be a partition of the sahan, angans, khands, dalan, orchards and phulwari mentioned in Schedule C of the written statement. There will be no order for the costs of this appeal.
Imam, J.
I agree.