Patna High Court
Dhirendra Pati Tiwary & Ors vs Ganesh Pati Tiwary & Ors on 25 November, 2014
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.326 of 1973 dt.25-11-2014
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.326 of 1973
(Against the judgment and preliminary decree dated 30.04.1973
passed by the 1st Additional Subordinate Judge, Sasaram in Title
Suit No.152 of 1962/35 of 1963).
===========================================================
Upendra Pati Tiwary & Ors
.... .... Defendant nos.1 to 21-Appellants
Versus
Ganesh Pati Tiwary & Ors
.... .... Plaintiffs-Respondents
===========================================================
Appearance :
For the Appellant/s : Mr. T.N.Maitin, Sr. Advocate
Mr. Arabind Nath Pandey, Advocate
Mr. Rangnath Pandey, Advocate
Mr. Varun Kumar, Advocate
For the Respondent/s : Mr. Narayan Singh, Sr. Advocate
Mr. Ramanand Tiwari, Advocate
Mr. Birendra Kumar Singh, Advocate
===========================================================
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 25-11-2014
1. This First Appeal has been filed by the contesting
defendants against the judgment and decree dated 30.04.1973 passed
by the learned 1st Additional Subordinate Judge, Sasaram in Title Suit
No.152 of 1962/35 of 1963.
2. The plaintiffs-respondents filed the aforesaid suit
for partition of 1/3rd share in schedule B, C, D and E properties. The
plaintiffs claimed the aforesaid 1/3rd share alleging that Parsurampati
Tiwary died in the jointness leaving behind his four sons namely
Ascharjpati Tiwary, Kuberpati Tiwary, Kamlapati Tiwary and
Harprasadpati Tiwary. Kuberpati died issueless. Kamlapati Tiwary
Patna High Court FA No.326 of 1973 dt.25-11-2014
2
had a son, Gajadharpati Tiwary who also died issueless. Ascharjpati
Tiwary died leaving his son, Kalapati Tiwary who in turn died leaving
his widow and a daughter namely Maharaji Devi and Sarswati Devi
respectively. Sarswati Devi is defendant no.29. Harprasadpati
Tiwary had three sons, Bimlapati Tiwary, Ramapati Tiwary and
Kshamapati Tiwary. Plaintiff no.1 is son of Kshamapati Tiwary and
other plaintiffs are of the branch of this Kshamapati Tiwary. The
defendants represent the branch of Bimlapati Tiwary and Ramapati
Tiwary. Bimlapati had six sons namely Jashwantpati Tiwary,
Bhagwantpati Tiwary, Rajwantpati Tiwary, Balwantpati Tiwary,
Brijwantpati Tiwary and Rudranarayanpati Tiwary. Defendant no.1 is
Bhagwantpati Tiwary.
3. According to the plaintiff's case, the defendant
no.1 is the karta of the family. The 16 Annas proprietory interest in
village Lily, Basantpore was given to Kuberpati by the then Maharaja
of Ramnagar as Krishna Arpan on Baishakh Sudi 12, Sambat 1932
and Khewat Nos.1 and 2 were prepared in the names of Kuberpati
Tiwary and Kamlapati Tiwary, sons of Parsurampati Tiwary. The
parties are coming in joint cultivating possession. Although, the
properties were recorded in the name of one member or the other in
cadastral survey operation, the same was possessed by the joint
family, therefore, the plaintiffs have got 1/3rd share and all the
Patna High Court FA No.326 of 1973 dt.25-11-2014
3
defendants have got 2/3rd share. Schedule C properties have been
acquired by joint family income and Schedule D properties are
moveable properties. Schedule E properties contain the compensation
received by the parties in lieu of vesting of their proprietor interest in
village Lily, Basantpore. On demand, the defendants refused to
partition, therefore, this suit was filed.
4. The defendant nos.22 to 28 have supported the
plaintiff's case and according to them, the defendant no.29 has got no
share in the property. Defendant no.19 adopted the written statement
filed by defendant nos.1 to 4. The suit was mainly contested by
defendant nos.1 to 4. According to their contentions, after death of
Ascharjpati Tiwary, Harprasadpati Tiwary and Kuberpati Tiwary,
there was disruption in the joint family and the parties separated and
each branch got 1/3rd share in whole of the ancestral property. Since
Kuberpati died issueless, his line extinct. This disruption and
partition took place through punches in the year 1925-26. The
properties which were left joint were also subsequently partitioned.
After death of Gajadharpati Tiwary, his father, Kamlapati Tiwary
executed a Will dated 14.10.1927 in favour of Rajwantpati Tiwary,
third son of Bimlapati Tiwary. Kalapati Tiwary, son of Ascharjpati
also made a Will of his properties in favour of Brijwantpati Tiwary,
husband of defendant no.10 on 03.04.1940. The legatees came in
Patna High Court FA No.326 of 1973 dt.25-11-2014
4
possession of the properties after death of the testators. The
descriptions of the properties have been given in Schedule A, A/1,
A/2 in the written statement. The properties which were left joint and
subsequently partitioned are described in Schedule B of the written
statement.
5. The further case of these defendants is that the
joint family had properties in village Pindi Tappa, Balia, Pargana
Salempur, Majhauli. Tile Suit No.732 of 1946 was filed with respect
to the said joint family properties which were ended in compromise.
The title suit being Title Suit No.663 of 1955 was filed with respect to
properties of Pathapur, Ratanmai and this suit was also ended in
compromise. By a private partition, the properties of Lily, Basantpore
were allotted exclusively to Kamlapati Tiwary, Kalapati Tiwary and
Bimlapati Tiwary. In that partition, the ancestor of the plaintiff
namely Kshamapati Tiwary was allotted share in Daliaman Mau in
U.P. and Dayapati Tiwary under the guardianship of her mother was
allotted the house at Varanasi and the properties of Ramapura
Manihari Tola at Varanasi in lieu of property of village Lily,
Basantpore. Out of the said property, plaintiff, Dayapati Tiwary had
already sold 9 bighas of land by registered sale deeds in the year 1950
and 1955. The defendants have also settled plot no.254, plot no.8,
plot no.312, plot no.293, plot no.321 to the persons of village Lily.
Patna High Court FA No.326 of 1973 dt.25-11-2014
5
The claim of the plaintiffs is, therefore, wrong. The defendants also
have settled plot nos.63, 64, 74, 76, 108 and 98 to different persons of
village Rampur. These transferees have not been joined as party,
therefore, the suit is bad for non-joinder of necessary party. The suit
is also bad for non-inclusion of other joint family properties of
Gorakhpur and Varanasi. On these facts, the defendants alleged that
since there had already been partition, the same cannot be reopened.
6. On the basis of the aforesaid pleadings of the
parties, the learned trial court framed the following issues:
I. Is the suit as framed maintainable?
II. Have the plaintiffs any cause of action for the suit?
III. Is the suit barred by limitation or adverse possession?
IV. Is the suit barred by estoppel, waiver and acquiescence?
V. Is the suit bad for defect of parties and multifariousness of
causes of actions?
VI. Is the suit bad for partial partition?
VII. Have the properties in suit been partitioned by metes and
bounds as claimed by defendants 1 to 4?
VIII. Have the legatees under the Wills created by Kamlapati and
Kalapati acquired any title, if so are they are in possession of
the properties covered by the two Wills?
IX. Is there any unity of title and possession between the parties
in respect of the suit properties?
X. Are the plaintiffs entitled to a decree for partition, if so, what
would be extent of their shares?
XI. To what relief or reliefs, if any, are the plaintiffs entitled?
Patna High Court FA No.326 of 1973 dt.25-11-2014
6
7. The learned trial court found that there is unity of
title and possession and decreed the plaintiff's suit to the extent of
1/3rd share.
8. The learned senior counsel, Mr. T.N.Maitin for the
appellants submitted that in support of the previous partition, the
defendants have examined many witnesses and also produced
documentary evidences but the learned court below wrongly held that
there had been no partition as alleged by the defendants and,
therefore, the trial court has wrongly decreed the plaintiff's suit for
partition to the extent of 1/3rd share. In any view of the matter, the
plaintiffs cannot claim more than 1/9th share. The learned counsel
submitted that in the compromise decree passed in Title Suit No.732
of 1946, the plaintiffs as well as defendant no.22 admitted that there
was partition and also admitted that Kalapati Tiwary and Kamlapati
Tiwary had executed Will in favour of Rajwantpati Tiwary and
Brijwantpati Tiwary. The learned trial court wrongly did not rely
upon these documents. The learned counsel further submitted that
written statement was filed in Title Suit No.25 of 1945/236 of 1943
wherein the defendant no.22 of this present suit and others filed
written statement wherein at paragraph 11, they admitted the partition
of the property of Lily, Basantpore about 17 years ago and at
paragraph 6, further admitted that in the said partition, the defendant
Patna High Court FA No.326 of 1973 dt.25-11-2014
7
no.1 of that suit, who is defendant no.22 of this suit, got the property
of Daliyaman Mau property in lieu of Lily, Basantpore by partition.
The said suit was contested upto the High Court and in presence of
Dalanpati, the contention of the defendants that there had been
partition was upheld.
9. The learned counsel further submitted that the
plaintiff, Dayapati filed Title Suit No.663 of 1955 against
Jashwantpati and others for partition of homestead land of village
Ratanmai wherein it was alleged by him that Dalanpati had no interest
in the homestead land. The suit was compromised and the rooms
which were allotted in previous partition, the plaintiffs gave up the
rooms in favour of the defendants and these defendants gave 10
kathas land to the plaintiffs admitting the share of the plaintiffs to the
extent of 1/9th only. The compromise application is Exhibit C-1. The
trial court wrongly, without proper discussion, has recorded the
finding that all these documents relate to the property of U.P.
According to the learned counsel, if the family was joint and the
plaintiffs conceded that he had only 1/9th share in the property of U.P.,
how can it be said that he has got 1/3rd share in the property in Bihar.
Therefore, the learned court below has wrongly held that the plaintiffs
have got 1/3rd share.
10. The learned counsel further submitted that Title
Patna High Court FA No.326 of 1973 dt.25-11-2014
8
Suit No.732 of 1946 was filed by Brijwantpati Tiwary against
Dalanpati and Dayapati, who are defendant no.22, and plaintiffs in
this suit wherein in the plaint, Exhibit B-1/2 at paragraph 3, there is
specific pleading about partition about 20 years before the date of
filing of the suit. On calculation, the years come to 1925-26.
Therefore, in this suit also, they have admitted the partition in the year
as claimed by these defendants-appellants. In paragraph 5-6, they also
admitted the execution of Will of the year 1927 and 1940 and also the
shares of the parties in paragraph 7 of the plaint which is the case of
the present appellants. The compromise application is Exhibit C-1/2
wherein also, they have admitted the execution of Will and regarding
partition and also share of the parties. According to the learned
counsel, the defendants also produced the choukidari receipts in
support of their case of partition and the said receipts have been
marked Exhibit D series. The learned counsel further submitted that
the rent receipts have been produced by the defendants which have
been marked Exhibit E series and there are other documentary
evidences but the learned court below discarded all these documentary
evidences on the ground that there is nothing on record to show that
the properties in Bihar was partitioned.
11. The learned counsel further submitted that Exhibit
P-1 is the judgment of Title Suit No.25 of 1945/236 of 1943 wherein
Patna High Court FA No.326 of 1973 dt.25-11-2014
9
there is clear finding that Dalanpati, defendant no.22 was not joint
with other defendants who are appellants in this First Appeal. Exhibit
P-1/1 is the judgment of Title Appeal No.163 of 1945 wherein the
appellate court has accepted his case of previous partition and
exclusive possession of the property of Lily, Basantpore by the
defendants 1st set. It was found that defendant no.22, Dalanpati has
no concern in these two villages Lily and Basantpore.
12. The learned counsel further submitted that the
defendants produced the order of compensation in Case No.747 of
1956-57, Exhibit X-1, Exhibit Z-1 and Exhibit Z-1(1/2) wherein the
exclusive possession of the defendants 1st set was found by the
revenue court. According to the learned counsel, these are
overwhelming documentary evidences in support of the fact that there
had already been partition between the parties. So far share is
concerned, the learned counsel submitted that even if it is found that
there had been no partition then in any case, the plaintiffs will be
entitled to only 1/9th share and not more than that because the 1/3rd
share of Kalapati Tiwary has been bequeathed by Will dated
03.04.1940in favour of Brijwantpati and likewise, 1/3rd share of Kamlapati has been bequeathed by him in favour of Rajwantpati Tiwary by registered Will dated 14.10.1927. Therefore, in any case, the properties covered by these Wills i.e. 1/3rd share of Kalapati Patna High Court FA No.326 of 1973 dt.25-11-2014 10 Tiwary and 1/3rd share of Kamlapati Tiwary total 2/3rd share out of the ancestral property is not available for partition. The plaintiffs will get 1/3rd of the 1/3rd share of Harprasadpati Tiwary i.e. 1/9th share.
13. The learned senior counsel further submitted that after partition, the defendants have disposed of many properties detailed in the written statement and the transferee/settlee are in possession of the properties but they have not been made party in the present partition suit and the plaintiffs have included their properties also. Therefore, the suit is bad for non-joinder of the necessary parties. On these grounds, the learned counsel submitted that the judgment and decree passed by the court below are liable to be set aside.
14. It appears that I.A. No.9639 of 2010 has been filed by the appellants under Order 41 Rule 27 of the C.P.C. seeking permission to adduce additional evidence i.e. judgment and order dated 17.04.2010 granting probate and also probate certificate dated 20.05.2010. Earlier this application was directed to be heard at the time of hearing of this appeal. I heard the parties on this I.A. also. The learned senior counsel, Mr. Maitin submitted that during the pendency of the appeal, the defendants had filed probate case No.80 of 1997/10 of 2009 for the grant of probate with regard to the registered Will dated 14.10.1927 executed by Kamlapati Tiwary in Patna High Court FA No.326 of 1973 dt.25-11-2014 11 favour of Rajwantpati Tiwary. By the judgment and order the said probate application was allowed and the certificate has been issued in favour of the defendants. Therefore, according to the learned counsel, so far the property of Kamlapati is concerned, it is not available for partition. So far the other registered Will of the year 1940 is concerned, the learned counsel submitted that the execution of the Will has been admitted by the plaintiffs earlier in the compromise application and, therefore, they admittedly claimed 1/9th share. In the registered Will, the share has been bequeathed and there is no specific land of particular mauja or province, therefore, the registered Will operate on the property of the deceased testator irrespective of the fact that it is situated within U.P. or it is situated in Bihar. The learned counsel further submitted that in U.P., probate is not necessary whereas in Bihar, probate is necessary but in the present case, the matter is otherwise because the plaintiffs themselves have admitted the execution of the Will. The genuineness of the Will has not been disputed by them. In such view of the matter, on the execution and registration of the Will, a right has already been created in favour of the defendants. Therefore, the learned court below has wrongly held that the Will is not probated, therefore, the property covered by the Will is available for partition.
15. On the other hand, the learned senior counsel, Mr. Patna High Court FA No.326 of 1973 dt.25-11-2014 12 Narayan Singh for the plaintiffs-respondents submitted that the Title Suit No.732 of 1946 was filed for partition of property of Mauja Pindi Tappa wherein on the basis of the Will dated 14.10.1927, it was held that Rajwantpati has got 1/3rd share and similarly because of Will dated 03.04.1940 executed by Kalapati in favour of Brijwantpati, it was held that he has got 1/3rd share in the property in suit. Therefore, in such view of the matter, it was held that Dayapati and defendants 2nd set, Dalanpati got 1/9th each in the property of Pindi Tappa. According to the learned counsel, since in U.P., probate is not required, therefore, 1/9th share was given to them but in Bihar, unless the Will is probated, the Will shall not be given effect to and on the basis of the Will, the defendants cannot claim title on the property in view of Section 213 of the Indian Succession Act, 1925. So far the probate certificate granted with respect to Will of the year 1927 is concerned, the learned counsel submitted that the probate has been granted without notice to the other side and without hearing the necessary parties and that too, after 62 years and the delay of such a long period has not at all been explained. The Will is highly suspicious but without considering this aspect, the probate court has allowed the probate application. Further, any omission and commission of a party cannot be allowed to prevail over law because in Bihar, the Will shall be valid only after it is probated and if it is not Patna High Court FA No.326 of 1973 dt.25-11-2014 13 probated, no effect will be given to the Will even if it is registered. Admittedly, in the present case, the Will of the year 1940 has not been probated still today and there is limitation of only three years. The probate granted with respect to Will of the year 1927 is not according to law. The property is situated in Bihar, therefore, the law of Bihar will apply. In U.P., probate is not necessary, therefore, the plaintiffs agreed to take 1/9th share and that was also by the order of the court with regard to U.P. property, therefore, it cannot be said that because they admitted that they have got 1/9th share in U.P. property, they have also got only 1/9th share in Bihar property. The learned counsel relied upon 2010(4) PLJR 355 and submitted that the limitation for probate is three years from the date of death of testator. There is no explanation as to why the probate case was filed in the year 1997. The Will is a furgi Will and it is manufactured only with a view to grab the share of the other co-sharers illegally and arbitrarily. Title Suit No.663 of 1955, Exhibit C-1 was not the partition suit and in that suit, Dalanpati Tiwary was not party and moreover, no share was given to Dalanpati which speaks a volume. In fact, father of Dalanpati purchased land and constructed house at Panchbhaiya-ke- Purva at some distance from the ancestral house. The plaintiff was youngest member of the family and was only son of Kshamapati and he was vexed by six sons of Bimlapati but when they refused, he filed Patna High Court FA No.326 of 1973 dt.25-11-2014 14 the suit and obtained the land after compromise for construction of the residential house. Everything was given by the defendants to the plaintiffs for construction which would be evident from Exhibit C-1.
16. The learned senior counsel for the respondents further submitted that the finding recorded in Title Suit No.236 of 1943 is not binding on the plaintiff as he was not party. The learned court below considering all these aspects of the matter and has decreed the plaintiff's suit. There is no decree of Civil Court regarding partition by metes and bounds. Only some properties in U.P. were partitioned on the basis of compromise. Many rent receipts are in the joint name of Ramapati, father of Dalanpati Tiwary. According to the learned counsel, had there been any partition by metes and bounds, the description of the properties should have been mentioned in the Will giving specific details regarding khata number, plot number, area etc. but there is no such mention which clearly indicate that there had been no partition between the parties. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost.
17. In view of the above contentions of both the parties, the points arise for consideration in this First Appeal are as follows:
I. Whether there is unity of title and possession between the Patna High Court FA No.326 of 1973 dt.25-11-2014 15 parties with respect to the suit property or whether there had already been partition as alleged by the appellants? II. Whether the plaintiffs are entitled to 1/3rd share as claimed by them or whether they are entitled to 1/9th share as claimed by the defendants-appellants?
18. Since both the points are inter-related, both the points are taken together. The specific case of the plaintiffs is that the parties are coming in joint cultivating possession over the suit properties although, the properties are recorded in the name of one member or the other in cadastral survey and the plaintiffs have got 1/3rd share. The defendants have got 2/3rd share. On the other hand, the contesting defendants-appellants contended that after death of Ascharjpati Tiwary, Harprasadpati Tiwary and Kuberpati Tiwary, there was disruption in the joint family and each branch got 1/3rd share and this disruption took place through punches in the year 1925-26. The properties left joint were also subsequently partitioned. Therefore, there is no unity of title and possession. In support of their respective cases, the parties have adduced oral as well as documentary evidences.
19. P.W.9 is the plaintiff himself. He has supported his case as made out in the plaint. P.W.2 is of village Lily. According to his evidence, the properties of village Lily and Basantpore joint. Earlier Ramapati Tiwary and Kshamapati Tiwary Patna High Court FA No.326 of 1973 dt.25-11-2014 16 were looking after the properties. Although, the parties have got some dispute between them but still the properties of two villages are not partitioned. In the cross-examination also, he has stated that both the parties live together in the house. Since last 8-9 years, Dayapati Tiwary ploughs his land separately by his Halwaha, Biltu Dusadh. It may be mentioned here that Biltu Dusadh is P.W.1. Same is the evidence of P.W.4, 5 and 8. P.W.5 has stated that he used to pay rent to Dalanpati Tiwary and Dayapati Tiwary. These all witnesses have stated that there had been no partition regarding the suit property which is still joint. The plaintiffs also produced the rent receipts, Exhibit 5 series and the Danpatra, Exhibit 3. The plaintiffs have also produced the mutation order passed by Additional Collector and Anchal Adhikari, Exhibit 9. Exhibit 12 series are khatiyans regarding the property of Ratanmai which is prepared jointly. These are the evidences produced by the plaintiffs in support of the case that the property is still joint and the plaintiffs have got 1/3rd share in the property.
20. The defendants-appellants have examined as many as 33 witnesses. Out of them, D.W.29 is Balwantpati Tiwary who is defendant no.2. He has fully supported the case of the contesting defendants mentioned in the written statement. D.W.14 has stated that the parties are separate and they have got separate residential Patna High Court FA No.326 of 1973 dt.25-11-2014 17 houses. According to this witness, the parties are cultivating separately. Kshamapati has got 1/9th share in the partition whereas Dalanpati also got 1/9th share and Bimlapati Tiwary got 7/9th share. In the partition, the properties of Dalia Mau were allotted to Ramapati and the properties of Lily and Basantpore were allotted to Bimlapati Tiwary, Kamlapati Tiwary and Kalapati Tiwary. The house of Banaras was allotted to Kshamapati Tiwary whereas the house at Laksha at Banaras was given to Bimlapati Tiwary and Ramapati got only two rooms in it. In the property of Pindi Tappa, Kshamapati got 1/9th share and likewise Dalanpati got 1/9th share whereas Bimlapati got 7/9th share. Therefore, so far the partition is concerned, this witness although has specifically supported the case of the defendants-appellants.
21. D.W.15 has stated that Bhagwantpati Tiwary is in possession of the lands of Lily and Basantpore and denied the presence of Dalanpati and Dayapati. From perusal of the cross- examination of this witness, it appears that he is a Chela of Bhagwantpati Tiwary and he specifically said that except Bhagwantpati Tiwary, he does not know others, D.W.16, 17 and 18 of another village. D.W.23 is of another village of Pratapgarh. According to the evidence of this witness, the partition took place through panchayati. Sukhdeo Singh, Durga Choubey, Beni Madhav Patna High Court FA No.326 of 1973 dt.25-11-2014 18 Pandey and Awadh Bihari Pandey were the punches. The houses of Banaras and also the lands of village Lily and Basantpore and Dalia Mau and other villages were partitioned whereas the lands of Gorakhpur district were left joint. So far this witness is concerned, it appears that his evidence is consistent and is in conformity with the pleadings of the defendants-appellants. From perusal of the judgment of the court below, it appears that the court below disbelieved the evidence of this witness only on the ground that Exhibit 12 and 12A, the khatiyans are still joint. According to the court below, if there had been partition, the khatiyans should have been prepared separately. Further, the court below observed that this witness is unable to say the area of the land owner, the plot number of the houses, therefore, this witness has been held to be incompetent witness. The learned senior counsel, Mr. Maitin appearing on behalf of the appellants submitted that the court below has rejected the evidence of this witness on untenable grounds. It is not expected to remember the area of the land or the plot number of the house by a witness after such a long period of partition. P.W.6 is Halwaha who has supported the case of partition between the parties. The learned counsel, Mr. Maitin submitted that the court below has wrongly discarded the evidence of this witness also on the ground that he is interested person and has appeared in the Court without summon and he has come with a hope Patna High Court FA No.326 of 1973 dt.25-11-2014 19 to receive payment on behalf of the defendants. According to the learned counsel, the grounds of rejection are nothing but imagination.
22. D.W.29 is the defendant no.2. He has fully supported the case pleaded in the written statement. According to his evidence, the lands of Pindi Tappa were not partitioned. The partition took place in the year 1926-27 i.e. 44-46 years ago. In partition, the house at Banaras was allotted to the mother of Dayapati Tiwary and she got two rooms in house at Ratanmai and the rest were allotted to Kalapati, Kamlapati and Bimlapati. This witness further stated that Ramapati Tiwary was allotted the house of Panchbhaiya-ka-purva. He has also stated regarding 1/3rd share of Kamlapati, Kalapati and 1/9th share of Ramapati, Bimlapati and Dayapati each. This witness also stated about the partition by the punches and also stated that out of the punches Rishiram Pandey is still alive but he is suffering from weak eyesight and his hands are trembling. The learned senior counsel, Mr. Maitin submitted that the witnesses specifically stated that he is unable to move and speak. The court below discarded the statement of this witness on the ground that no medical certificate has been produced in support of the fact and no attempt was made for examining him on commission. On this ground, the court below has drawn adverse inference against the defendants holding that they have purposely withheld the best witness.
Patna High Court FA No.326 of 1973 dt.25-11-2014 20
23. In addition to the above evidences regarding partition between the parties, the defendants also produced Exhibit A- 1, the written statement filed by Bhagwantpati and others in Title Suit No.236 of 1943 whereas Exhibit B-1 is the plaint of the above title suit. From perusal of the plaint and written statement, it appears that the said suit was filed by Sumeshwar Tiwary and others. The lands were settled by Dalanpati Tiwary in favour of Sumeshwar Tiwary and others. They lost 144 Cr.P.C. proceeding against Bhagwantpati and others. Therefore, they filed the suit for declaration of title and recovery of possession. Bhagwantpati Tiwary and others filed written statement and in paragraph 11 clearly stated that there had already been partition of the lands of Lily and Basantpore about 17 years ago and at paragraph 6, it was specifically stated that in that partition, the defendant no.1 of that suit i.e. Dalanpati who is defendant no.22 in the present suit was allotted lands of Dalia Mau in lieu of Lily and Basantpore in partition. The learned senior counsel, Mr. Maitin gave much emphasis on this statement that as far back as in the year 1943, specific assertion was made by these defendants regarding partition of the property of Lily and Basantpore. The suit was filed in the year 1943 wherein it was stated that 17 years ago, there was partition between the parties. On calculation, it comes to the year 1926-27. This is the case of these defendants in the present suit also. Patna High Court FA No.326 of 1973 dt.25-11-2014 21
24. The defendants-appellants have also produced plaint of Title Suit No.663 of 1955 which has been marked as Exhibit B-1/1. It appears that this suit was filed by Dayapati, the present plaintiff against Jashwantpati Tiwary and others for partition of homestead land of village Ratanmai wherein he has specifically stated that Dalanpati has no interest in the homestead plots as he has got no share. He was claiming half share in the property.
25. According to the learned senior counsel, had there been no partition between the parties, no such statement could have been made by the present plaintiff. It further appears that the said suit was decreed in terms of compromise between the parties. Exhibit C-1 is the compromise application and by this compromise, two rooms allotted by previous partition in favour of plaintiff had been given up by the plaintiff to defendants and these defendants in lieu thereof gave 10 kathas land to the plaintiff wherein it was admitted that the plaintiff has got only 1/9th share.
26. The defendants-appellants have also produced Exhibit B-1/2, the plaint of Title Suit No.732 of 1946. This suit was filed by Brijwantpati against Dalanpati Tiwary and Dayapati Tiwary. It may be mentioned here that Dalanpati is defendant no.22 in the present suit whereas Dayapati is the plaintiff. Brijwantpati is contesting defendant. In this suit also, there is specific mention at Patna High Court FA No.326 of 1973 dt.25-11-2014 22 paragraph 3 that twenty years ago, there had been partition between the parties. On calculation, the year comes to 1926-27. In paragraph 5 and 6 of this plaint, there is specific mention that after partition, Wills were executed in the year 1927 and 1940. At paragraph 7 of the plaint, there is clear mention about the share of the parties in the property. The learned senior counsel for the respondents submitted that this suit relates to the property of U.P., therefore, it is not applicable in the present suit which is only for the lands of Bihar.
27. It further appears that this suit was also decreed in terms of the compromise and the compromise application has been marked Exhibit C-1/2. In the compromise, the present plaintiff and present defendant no.22 i.e. Dayapati and Dalanpati both have categorically stated the case of the plaintiff regarding partition and execution of Will and that the parties acted according to the partition and shares. It appears that in the plaint, it was specifically pleaded that there had been partition between the parties twenty years ago i.e. in the year 1926-27 which was admitted by the present plaintiff and defendant no.22. It is not the case of the plaintiff of that suit that the partition took place only with respect to property of U.P. and the property of Bihar is still joint. The consistent case of the defendants- appellants in those suits is also that there had already been partition between the parties irrespective of the fact that the lands is in Bihar or Patna High Court FA No.326 of 1973 dt.25-11-2014 23 is in U.P. In the compromise, there is no agreement or statement to the effect that there had been partition with respect to the lands of U.P. only. On the other hand, it is specifically admitted in the compromise, Exhibit C-1/2 that there had been partition between the parties as claimed by the plaintiff of that suit and thereafter two Wills have been executed. Therefore, the present plaintiff and defendant no.22 of this suit clearly admitted regarding partition and regarding genuineness of the Will and admitted the fact that in fact the Wills have been executed. Now, therefore, only because the subject matter of the suit was the lands of U.P., it cannot be said that Bihar land is still joint. It is the specific case of the defendants-appellants that there was complete partition and the lands of Bihar were allotted to the co- sharers and they were not allotted any land in U.P. whereas the plaintiff's ancestor was allotted the house in Banaras. The learned court below has wrongly discarded these admissions made by the plaintiff and defendant no.22.
28. Exhibit D series are the choukidari receipts concerning the lands of village Lily. Exhibit D-1/13 is the choukidari receipt of the year 1943 whereas Exhibit D-1/8 is the choukidari receipt of the year 1969 which are in the name of the defendants- appellants. Exhibit E series are the rent receipts granted by the ex- landlord and after vesting the State of Bihar and after settlement by Patna High Court FA No.326 of 1973 dt.25-11-2014 24 the defendants-appellants to the settlees and then the rent receipts granted by the State of Bihar to the settlees. Exhibit E-1/28 is for the year 1339 to 1346 Fasli and Exhibit E-1/27 is for 1347 to 1349 Fasli granted by State of Bihar for village Basantpore and Lily lands. Likewise Exhibit E-1/19 to 1/21 are for the year 1954 to 1956. The appellant, Bhagwantpati Tiwary granted rent receipts to Ramraj Tiwary one of the settlees and the rent receipts are Exhibit E-1/32 to E-1/35. One Yamuna Dusadh purchased the property from the appellants and came in possession which is evident from the rent receipts, Exhibit E-1/22, 1/23, 1/12 and 1/13. The sale deed has been marked as Exhibit I-1/2. Exhibit I-1/3 is another sale deed wherein the purchaser is one, Nathuni Hazam. Bhagwantpati also settled some lands in favour of Kesho Tiwary and granted rent receipts, Exhibit E- 1/29 to 1/32. The other settlee, Sabu Tiwary was also granted rent receipts which are Exhibit E-1/36 to 1/42 and these rent receipts have been granted by Bhagwantpati Tiwary. These rent receipts are from 1354 Fasli to 1361 Fasli. The other rent receipts show that the other settlee, Bashisth Tiwary was also granted the rent receipts by the defendants-appellants.
29. The defendants have also produced the sale deeds executed by plaintiffs regarding the house properties which were allotted to him in the partition of the year 1925-26. The sale deeds Patna High Court FA No.326 of 1973 dt.25-11-2014 25 have been marked Exhibit I-1 and I-1/1. The defendants also produced sale deeds executed by Bhagwantpati in favour of Yamuna Dusadh, Nathuni Hazam and one, Darbari Tiwary and Aditya Tiwary which are Exhibit I-1/2 to I-1/5. These sale deeds have been produced by the defendants-appellants to show that the parties are dealing the properties exclusively since long as owner thereof. There is no objection by anyone.
30. It further appears that the defendants-appellants have also produced the survey purcha in the name of purchasers, Nathuni Hazam, Yamuna Dusadh which are Exhibits J-1 and J-1/1. Exhibit J-1/2 to Exhibit J-1/14 are the revisional survey purcha which have been produced by the defendants to show that they are in exclusive possession.
31. The learned senior counsel, Mr. Maitin for the appellants placed reliance on Exhibit L-I i.e. the deposition of Bhagwantpati in Title Suit No.236 of 1943 and the deposition of the punch Rikhiram Pandey, Exhibit I-1/1 in that very suit. According to the learned counsel, in the depositions, they have made clear case that there had already been partition in the year 1925-26 and there is no good relation between them and defendant no.1 of that suit i.e. defendant no.22 in this present suit. On the strength of these depositions, the learned counsel submitted that the defendants- Patna High Court FA No.326 of 1973 dt.25-11-2014 26 appellants are not making a new case in the present suit for partition. They took the stand as far back as in the year 1943. I find much force in the submission.
32. The two Wills dated 14.10.1927 executed by Kamlawati in favour of Rajwantpati Tiwary and the Will dated 03.04.1940 executed by Kalapati in favour of Brijwantpati have been produced which have been marked as Exhibit O-1 and O-1/1. The learned counsel submitted that the genuineness of these Wills have not been challenged by the plaintiffs rather in Exhibit C-1/2 i.e. compromise arrived in Title Suit No.732 of 1946 wherein defendant no.22 and the present plaintiff were party admitted clearly that the Wills are genuine and accordingly, they have got only 1/9th share. It is not the case that the Will was executed only for the lands of U.P. It is specifically mentioned in the Will that the Will was executed with respect to the property of the donor. It is admitted fact that there is no mention in the deed that it will not operate with respect to the property of Bihar. According to the learned counsel for the respondents, in U.P., probate of the Will is not necessary, therefore, the plaintiff admitted the genuineness of the Will. So far Bihar is concerned, unless Will is probated, no effect can be given to it in view of Section 213 of the Indian Succession Act. So far this submission of the learned counsel for the respondents is concerned, it may be mentioned Patna High Court FA No.326 of 1973 dt.25-11-2014 27 here that the plaintiffs admitted the genuineness of the Will as far back as in the year 1946 in the suit as stated above. Therefore, at one place, he admitted the genuineness and now before this Court in this appeal, the genuineness is being challenged. Therefore, the plaintiffs- respondents are blowing hot and cold. It is settled principles of law that a party cannot be allowed to aproabte and reprobate. Moreover, it is also settled principles of law that property vests on executors by virtue of Will and not by virtue of probate. Further, in the present case, so far the Will of the year 1927 is concerned, it has already been probated and the probate certificate has been filed along with I.A.
33. It may be mentioned here that in the present case, the suit has not been filed for partition of the property on the ground that the Wills are forged Wills or not genuine Will, therefore, the property be partitioned. In fact, the present suit has been filed simply stating that there had been no partition between the parties. Now, therefore, the circumstance has been produced by the defendants to show that the parties are dealing the properties since long back exclusively and the Wills in question have been executed in the year 1927 and 1940. The different suits were filed either between the parties or against the parties since long right from 1943 to 1946.
34. The learned counsel for the respondents submitted that the I.A. filed by the appellants under Order 41 Rule 27 C.P.C. is Patna High Court FA No.326 of 1973 dt.25-11-2014 28 concerned, it cannot be allowed after such a long delay. So far this submission is concerned, it may be mentioned here that during the pendency of the suit, the probate certificate was not issued. During the pendency of this appeal, the certificate has been issued with respect to the Will of the year 1927. The probate has been granted by judgment dated 17.04.2010 passed in probate case No.80 of 1997 and certificate has been issued. According to the learned counsel for the respondents, the probate application was hopelessly barred by law of limitation and that, no notice was issued to the plaintiffs-respondents. So far this submission is concerned, it may be mentioned here that in the present First Appeal while considering an I.A. under Order 41 Rule 27 C.P.C., the point raised by the plaintiffs-respondents cannot be decided particularly when the plaintiffs-respondents have not challenged the judgment whereby the probate application was allowed. Admittedly, the plaintiffs never filed for revocation of the certificate. I, therefore, find no reason to accept the argument of the learned counsel for the plaintiffs-respondents.
35. In view of the decision of the Hon'ble Supreme Court in the case of Union of India v. Ibrahim Uddin & Anr., 2013(1) PLJR 48 Supreme Court, the I.A. is heard along with the appeal. In my opinion, since the certificate issued is a public document, it cannot be discarded on the ground that no notice was Patna High Court FA No.326 of 1973 dt.25-11-2014 29 issued or that the probate proceeding was hopelessly barred by law of limitation particularly when the plaintiffs-respondents never challenged the genuineness of the Will and as stated above, they have admitted the genuineness of the deed of Will as far back as in the year 1946.
36. So far the submission of the learned counsel for the respondents that the plaintiffs have got 1/3rd share is concerned, it may be mentioned here that the family is same and the family had lands at different places in different villages. In such circumstances, the share of the plaintiffs will not vary from place to place i.e. the plaintiffs will not get 1/9th share so far property of U.P. is concerned and 1/3rd share so far property of Bihar is concerned. The share of the plaintiffs will be same irrespective of the fact that the property situate either in Bihar or in U.P. In the compromise, as stated above, the plaintiffs specifically admitted that he has got 1/9th share and also specifically admitted the genuineness of the Wills. I have already mentioned above that now he cannot be permitted to aprobate and reprobate i.e. now he cannot be allowed to take a different stand with a view to take undue advantage. In other words, now he cannot say that although, he admitted the genuineness of the Will and he has got 1/9th share in the property of U.P., he is entitled for 1/3rd share in the property of Bihar. This is a strong circumstance against the plaintiffs. Patna High Court FA No.326 of 1973 dt.25-11-2014 30
37. From the above facts and the evidences produced by the defendants oral as well as documentary, it is clear that since 1943, a stand had been taken by the defendants-appellants that there had already been partition between the parties. This fact has been admitted by the plaintiffs in the compromise aforesaid. It is not the case of any of the party that the property of U.P. was partitioned only and the property of Bihar was not partitioned. The defendants specifically admitted that in partition, the suit property of village Lily and Basantpore was allotted in favour of defendants-appellants in the partition of the year 1926-27. The plaintiffs admitted the execution and genuineness of the Will. The first Will was executed in the year 1927. The court below presumed that because there is no mention of specific details of the property in the Will, no finding can be recorded that there had been partition and had there been partition, specific details should have been mentioned in the Will. So far this ground taken by the court below is concerned, it may be mentioned here that admittedly there is no document showing partition but the partition can be deduced from the circumstances and the conduct of the parties.
38. A Division Bench of this Court in the case of Arjun Mahto and others v. Monda Mahatain and others, A.I.R. 1971 Patna 215 relying on the decision of the Hon'ble Supreme Court in the case of Bhagwan Dayal (since deceased) and Patna High Court FA No.326 of 1973 dt.25-11-2014 31 thereafter his heirs and legal representatives Bansgopal Dubey and another v. Mst. Reoti Devi (deceased) and after her death, Mst. Dayavati, her daughter, A.I.R. 1962 Supreme Court 287 have held that although, separate possession or cultivation and separate messing by themselves individually will not constitute partition but the cumulative effect of separate dealings of the property, separate messing, separate cultivation for a long period, there will be presumption that there had been partition between the parties. In the present case, the parties are executing Wills since 1927, there are litigations since 1943, the rent receipts are granted separately, choukidari receipts are obtained separately, the plaintiffs sold exclusively the house of Banaras to third party strangers and likewise, the defendants also executed many sale deeds and the purchasers are in possession since long. The defendants-appellants also settled many lands prior to vesting in favour of different persons since long and the settlees are in possession and are obtaining receipts from the State of Bihar. The other aspect of the matter is that so far the property of U.P. is concerned, it is admitted that there had been partition. Therefore, the presumption which was available in favour of the plaintiffs that a Hindu family is presumed to be joint unless the contrary is proved is not available because partition of some of the properties has already been admitted. It is settled principles of law Patna High Court FA No.326 of 1973 dt.25-11-2014 32 that once it is admitted that some joint properties are partitioned then the presumption is that all the properties of the family have been partitioned. The plaintiffs have to prove, therefore, the fact that in fact, the suit property was left joint for partition in future but it is not the case of the defendants here.
39. In view of these settled principles of law, in the present case, the presumption is that there had been partition. The plaintiffs filed the suit property claiming partition of 1/3rd share. The court below discarded all the above evidences discussed above on the ground that the documentary evidences relate to the property of U.P. without considering the fact that it is the case of the defendants that in partition, U.P. property were allotted in favour of the branch of plaintiffs and defendant no.22 was allotted the property of Dalia Mau etc. It is not the case of the plaintiffs that in partition of the property in U.P., the property of Bihar was agreed to be partitioned in future between the parties. No explanation has been given as to why the house of Banaras has been sold by the plaintiffs, if it was the joint family properties. There is no explanation as to why the lands which have been sold by the defendants in favour of strangers and the lands which have been settled in favour of the settlee who are strangers of the family have been included in the partition suit without making the purchasers and the settlee as party-defendants in the suit. Patna High Court FA No.326 of 1973 dt.25-11-2014 33
40. Further, it may be mentioned here that it is not the case of the plaintiffs that the sale deeds executed by the defendants are void or voidable or that the settlement made are void or voidable or legal or illegal. Now, therefore, the purchasers and the settlee have got interest in portions of the suit property. How this partition suit will be maintainable regarding the property of third person who are the real owner in their absence. It is settled principles of law that without hearing a person, who is admittedly owner of the property, no order can be passed. Here, the defendants have produced various sale deeds showing that they have already transferred many properties to the purchasers. In spite of the above fact, the plaintiffs never added them as party-defendants but admittedly, the transferred property have also been included in the suit. The learned court below has not considered these aspects of the matter.
41. From perusal of the judgment of the court below, it appears that the court below discarded the evidence of the defendants witnesses on the ground either that the witnesses are unable to give the plot number or khata number or area of the land allotted in the partition or they were not present in the partition and that, no steps have been taken for examination of the punch. Likewise, the court below has discarded the documentary evidences on the ground that those documents relate to the property of U.P. In my opinion, on Patna High Court FA No.326 of 1973 dt.25-11-2014 34 these grounds, the documentary evidences could not have been discarded particularly when the specific case of the defendants- appellants is that there had already been partition between the parties and the suit property was allotted in favour of the defendants- appellants. When the plaintiffs admitted that there had already been partition with respect to the U.P. property and also admitted fact is that plaintiffs have sold the property exclusively by executing sale deeds, the presumption is that there had been partition with respect to all the properties, the burden was on the plaintiffs to prove specifically that at the time of partition, the parties agreed that the property of Bihar was left joint for partition in future.
42. In view of my above discussion, I find that the plaintiffs have failed to prove that there is unity of title and possession between the parties with respect to the suit property. On the other hand, the defendants have been able to prove by adducing cogent evidences oral and documentary that there had already been complete partition between the parties with respect to all the properties. Therefore, the contrary finding of the court below is hereby reversed. So far share is concerned, as I have already held that there had already been partition, as has been admitted by the plaintiffs and the parties came in possession according to their share, now again the partition cannot be reopened giving 1/3rd share to the plaintiffs. The contrary Patna High Court FA No.326 of 1973 dt.25-11-2014 35 finding of the court below is thus, hereby reversed.
43. In the result, this First Appeal is allowed. The impugned judgment and decrees are set aside and the plaintiff's suit for partition is hereby dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Mungeshwar Sahoo, J) Saurabh/-
U T