Patna High Court
Prabhat Chandra Roy (Deceased) ... vs Prakash Chandra Roy (Deceased) ... on 27 September, 2000
Equivalent citations: 2001(49)BLJR184
Author: A.K. Prasad
Bench: A.K. Prasad
JUDGMENT A.K. Prasad, J.
1. This Letters Patent Appeal is directed against the judgment of the learned single Judge of this Court in F.A. No. 134 of 1984 (R), while reversing the judgment and decree of the trial Court dated 28.6.1984 in P.S. No. 143 of 1982 and decreeing the suit of the plaintiffs for partition of the suit property, which is fully described at the foot of the plaint. The suit property is a building with vacant land, which measures 10 Cotthas and two Chataks, which is situate in village Kadru, Mohalla-Office Pada, within the police station Doranda, in Ranchi town.
2. It is admitted fact that Prafulla Chandra Roy was the common ancestor of the parties. It is further admitted fact that the parties are Hindus, governed by Dayab-haga School of Hindu law in the matter of succession and inheritance. It is undisputed that the land in question was acquired by Prafulla Chandra Roy under Chhaparbandi registered lease dated 28.4.1990. It is not in controversy that Prafulla Chandra Roy, the common ancestor of the parties, died on 23.5.1961, which is borne out by his death certificate (Exhibit C).
The genealogical table, as under, will depict the relationship inter se between the parties :--
It is admitted fact that Prafulla Chandra Roy, the common ancestor of the parties, had two sons, namely, Prabhat Chandra Roy/original defendant No. 1 and Prakash Chandra Roy/original plaintiff No. 1, and a widow daughter-in-law, namely, Jogmaya Roy/original plaintiff No. 2, the widow of his pre-deceased son Prabodh Chandra Roy, and two daughters, Urmila Das Gupta/ original defendant No. 3 and Indira Sen Gupta/original defendant No. 2.
The plaintiffs brought P.S. No. 143 of 1982 with the allegation that Prafulla Chandra Roy had constructed house over the portion of the vacant land, acquired by him, which is fully described in the Schedule to the plaint, and on his death, the plaintiffs inherited the property to the extent of their 2/5th share in it, while his son original defendant No. 1 (Prabhat Chandra Roy) and his daughters (Urmila Das Gupta/defen-dant No. 3 and Indira Sen Gupta/defendant No. 2, each, had 1/5th share therein, and as the number of the family members of the parties had increased, there was inconvenience in remaining in joint possession of the suit property and hence, the suit for partition and allotment of 2/5th share therein.
3. Prabhat Chandra Roy (original defendant No. 1) resisted the suit by filing a written statement. He contended therein, inter alia, that the house on the suit land was constructed by Prafulla Chandra Roy, the common ancestor, out of the fund provided by this defendant, and in his life time, some time in the year 1954, he gave specific portion of the properties in the suit to his sons, including this defendant and the parties came in exclusive possession of the respective portionfs) of the suit property, allotted to them and this defendant is coming in separate and exclusive possession of the properties, so allotted to him, in extreme southern side, on which this defendant made further construction of three rooms and sank a tube-well from separate fund. According to him, the daughters (original defendants 2 and 3) were allotted no share by the father in the suit property. He further denied that the parties are in joint possession of the suit property or that the plaintiffs had undivided 2/5th share in the suit property. He asserted that there was no unity of title and possession between the parties and the suit was not maintainable.
Defendant No. 2 (Smt. Indira Sen Gupta) filed a written statement, in substance, supporting the claim of the plaintiffs.
4. On the basis of the pleadings of the parties, the following issues were framed by the trial Court for adjudication in the suit,--
(1) Is the suit as framed maintainable ?
(2) Have the plaintiffs got any cause of action or right to sue in this suit ?
(3) Is the suit barred by law of adverse possession and ouster ?
(4) Is there existence of unity of title and possession between the parties of this suit in respect of the suit property ?
(5) Are the plaintiffs entitled to get a decree for partition of their share of suit property as claimed by them in this suit ?
(6) To what other relief or reliefs, if any, are the plaintiffs entitled ?
5. At the trial, evidence were led on behalf of both the parties, in support of their respective claims. The trial Court held that the plaintiffs had failed to prove that the house on the suit land was constructed by Prafulla Chandra Roy; that there was previous partition in the year 1954, as claimed by the contesting defendants, and since then, both the parties were coming in exclusive possession of the respective portions, allotted to them by Prafulla Chandra Roy in his life time; that there was no unity of title/possession between the parties and ultimately, it decided all the issues against the plaintiffs and dismissed the suit.
6. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred F.A. No. 134 of 1984 (R) in this Court. In the first appeal, the learned single Judge by reasoned judgment reversed the verdict of the trial Court and decreed the suit of the plaintiffs for partition of their 2/5th share in the suit property.
Against the decision in F.A. No. 134 of 1984 (R), Prabhat Chandra Roy (original defendant No. 1) preferred this LPA No. 36 of 1991 (R). It has been noticed above that he and some other parties died during the pendency of the instant LPA and their heirs/legal representatives have been substituted on record, which is depicted in the genealogical table, set out in the foregoing paragraph.
It appears that plaintiff No. 1/respondent No. 1 died issueless on 27.10.1997 during the pendency of this appeal and a petition was filed on 21.1.1998 to delete his name from the memorandum of appeal and another petition was filed to delete the name of plaintiff No. 2/respondent No. 2 (Srnt. Jogmaya Roy) who had died on 6.5.1998 and her heirs respondents 3 and 6 were already on record, but formal order regarding deletion of names of plaintiff No. 1/ respondent No. 1 and plaintiff No. 2/res-pondent No. 2 could not be passed. This omission could be detected at the time of preparation of the judgment. Hence, formal order to delete the names aforementioned is accorded in terms of the aforesaid petitions. It may also be mentioned here that at the time of the argument in the appeal, it was conceded by both the parties that respondents 1 and 2 had died during the pendency of the instant appeal.
7. Mr. P.K. Sinha, learned senior counsel for the appellants, has urged that on the basis of the evidence, oral and documentary, led by the contesting defendant (Prabhat Chandra Roy) the learned single Judge erred in upsetting the finding of the trial Court that Prafulla Chandra Roy, the common ancestor of the parties, had partitioned the suit property in his life time amongst his three sons in or about the year 1954. He further urged that during the pendency of the instant appeal, plaintiffs 1 and 2/respondents died and plaintiff/respondent No. 3, as well as defendant No. 4/res-pondent No. 6 the daughters of deceased plaintiff/respondent No. 2, who are female members are claiming partition of the suit property, which is not permissible, since the sons of the deceased appellant (Prabhat Chandra Roy), the male heirs of deceased Prafulla Chandra Roy, are resisting their claim for partition, in view of Section 23 of the Hindu Succession Act. He further submitted when the subsequent events are relevant, genuine and vitally important in effectually deciding the issues involved, they ought to be taken into consideration even at the appellate stage. He has relied on the decisions reported in (i) Jaimangal Oraon v. Mira Naik, (2000) 5 SCC 141; and (ii) Narshimha Murty v. Sushila Bai, AIR 1996 SC 1826 : as also a decision of this Court rendered by learned single Judge in F.A. No. 1039 of 1971 disposed of on 6th May, 1987.
Mr. P.C. Roy, learned counsel for respondent No. 3, on the other hand, has supported the impugned judgment and contended that when the plaintiff/respondent No. 1, son of Prafulla Chandra Roy, had brought the suit for partition jointly with other plaintiffs against Prabhat Chandra Roy (defendant No. 1) of the suit property, on which the house stands, in the year 1982, and they were the appellants in F.A. No. 134 of 1984 (R), and when the suit for partition was decreed, the subsequent death of plaintiffs/respondents 1 and 2, during the pendency of the instant appeal, will not stand as bar within the meaning of Section 23 of the Hindu Succession Act in claiming partition of 1/4th share in the suit property. Because the right of a party is to be determined by the facts as they exist on the date the suit is instituted and the courts procedural delay cannot deprive the legal justice or rights crystallised in the initial cause of action, although courts can, however, take note of the subsequent events and mould the relief accordingly, but in exceptional circumstances. He has placed reliance on the decision of the Apex Court reported in AIR 1976 SC 49; Rameshwar v. Jot Ram.
Mrs. Jaya Roy, learned counsel for the other set of respondents, has adopted the argument advanced by Mr. P.C. Roy.
8. The following points are formulated for decision in this appeal,--
(i) Whether Prafulla Chandra Roy, the common ancestor of the parties, had partitioned the suit property in his life time amongst his sons in the year 1954 ?
(ii) Whether the relief for partition can be granted to respondent Nos. 3 and 6 of the suit property ?
(iii) What is the scope of Section 23 of the Hindu Succession Act in the changed facts and circumstances of the case ?
Point No. (i) :
It is admitted fact that Prafulla Chandra Roy, the common ancestor of the parties, exclusively acquired the land in suit. It is further admitted that the parties are governed by Dayabhaga School of Hindu law. It is well settled that the property of a deceased Hindu governed by Dayabhaga School of Hindu law passes by succession and not by survivorship. Even in Dayabhaga joint family, a member holds a share in quasi-severalty and on his death, it passes to his heirs as if he had exclusive title in the defined share and there is concept of joint ownership and not unity of titi.e. Under the Dayabhaga School of Hindu law, in the life time of a father, his sons have no right to his property. Prabhat Chandra Roy, the contesting defendant, pleaded in the written statement that his father had constructed the building on the vacant portion of the purchased land, out of the funds belonging to this defendant. But in his evidence, this defendant (DW 4) claimed that it was he, who got the building over the suit land constructed from his personal fund in 1953. Thus there is variance in his pleading and evidence on the construction of the house over portion of the suit land. It is the case of the plaintiffs that the house over the suit land was built by Prafulla Chandra Roy. PW 2 (Prakash Chandra Roy), plaintiff No. 1, testified to this effect. The contesting defendant pleaded in the written statement that sometime in the year 1954, Prafulla Chandra Roy gave specific portion of the properties in suit to his three sons, who came in exclusive possession of the portion so allotted to them. In other words, no share was allotted by him to his two daughters. The written statement is completely silent about the portion of the land, which was allotted to the two sons (including plaintiff No. 1), other than the contesting defendant. But in his evidence (DW 4) has stated that his father had allotted him the share in the land in Southern portion, while his younger brothers were given land in Northern portion of the suit plot. He further claimed to have constructed three rooms on his allotted share of land in 1978. But no plan, approved by the Notified Area Committee, was produced by him to show that he had got the portion of the house constructed on the suit land.
DW 4 claimed in his cross-examination that the partition effected by his father amongst the sons was oral and without measurement on the spot. According to him, his elder brother was alive, when the alleged oral partition was effected. He further submits that no mutation was done after the alleged partition. The question of any partition of the property owned by a Dayabhaga Hindu father amongst his sons does not arise in life time. He has clearly admitted that the land was not conveyed or gifted by his father to him or his other sons. DW 4 has clearly stated that he himself owns another house. The learned single Judge rightly observed that the Municipal Tax Receipts, which are Exhibits A series, for the years 1981-83 did not carry any significance when the name of the contesting defendant was not mutated over the portion of the suit land, which is alleged to have been allotted to his share by his father. A receipt for Rs. 4,300/- dated 5.2.1982 (Exhibit D) for installing a hand pump, granted by Tulsi Mistri and a bill of Rs. 9,250/- dated 15.7.1978 (Exhibit B), purported to have been granted by Sk. Safrul, in favour of defendant No. 1, were tendered in evidence on his behalf. But in these two documents, there is no reference of plot No. to connect it with the suit land, nor Tulsi Mistri or Sk. Safrul, were examined to testify about the work carried out, as mentioned in Exhibits D and B. So, rightly no reliance was placed by the learned single Judge on these two documents to establish the claim that the contesting defendant/ respondent had sunk a tube-well or made any construction on a portion of the suit plot.
DW 2 (Ramendra Nath Chakraverty), a friend of defendant No. 1, has come forward to support his case about the construction made by him on the portion of the suit plot. He claims that he had advanced Rs. 2,000/- to the defendant for the construction. But the defendant (DW 4) did not whisper about it in his evidence, nor there is any document to support it. It has been elicited in his cross-examination that Prafulla Chandra Roy had allotted rooms to his sons for living. Allocation of rooms by the father to his sons for living does not amount to partition or conveyance by way of gift. It may be done so by a parent so that the sons may live with their individual family(s) conveniently. PW 2 (Prafulla Chandra Roy), Plaintiff No. 1 had denied that the house standing over the portion of the suit plots had been partitioned by his father amongst the sons and he asserted that it was in joint possession of the parties. It is true that PW 2 and DW 4 stated in their evidence that they have taken separate meter connection for the portion of the house in their occupation in the suit premises. The electric connection or water connection is taken separately in premises for the sake of convenience, but it cannot prove the exclusive title of such connection holder to specific portion of the property. It is well known that the possession of a co-owner is that of another co-owner. In a case of Hindu, governed by Dayabhaga, the heirs are co-owners and the question of unity of title does not arise. But the property is deemed to be in joint possession unless the ouster of a co-owner is not only pleaded but positively proved. On scrutiny of the evidence on record and for the cogent reasons, the learned single Judge rightly held that the contesting defendant had failed to prove the previous partition and arrived at the conclusion that the property was in joint possession of the parties. For the weighty reasons, the learned single Judge was justified in reversing the finding of the trial Court on this issue. For the aforesaid reasons, I concur with the findings of the learned single Judge on this score. Point No. (1) is decided accordingly.
Point Nos. (ii) and (iii) :
9. Both the issues are interconnected and for sake of convenience, they are taken together for discussion. In the instant appeal, the scope of Section 23 of the Hindu Succession Act, 1956 (the Act for short) falls for consideration. Section 23 of the Act runs thus :--
"23. Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the 'right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein :
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."
It prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir(s) and the right to claim partition by female heir(s) is kept in abeyance and deferred during the life time of the male heir(s) or till the partitions, and the restriction on the female heir(s) on the right to claim partition of the dwelling house will not operate where the premises is partly or substantially let out to the tenants AIR 1996 SC 1826, Narshimma Murty (supra). In the instant case, the dwelling house stands on a portion of the suit property with vacant land. It is well settled that the Court can take notice of subsequent events which are relevant, genuine and vitally important in effectively deciding the issue involved even at the appellate stage to shorten the litigation, to preserve right of both the parties and to subserve the ends of justice. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such events (Ref AIR 1973 SC 171; M. Laxmi & Company v. A.R. Despandey and Jaimangals case (supra). In the instant case, the suit for partition was also brought by Prakash Chandra Roy, one of the two surviving sons/male heirs of Prafulla Chandra Roy against the contesting defendant No. 1, Prabhat Chandra Roy, his full brother and others. But it was dismissed by the trial Court, whereupon F.A. No. 134 of 1984 (R) was brought by him co- jointly with the co-plaintiffs in the suit against Prabhat Chandra Roy, brother/contesting defendant No. 1, which, on contest, was decreed for partition of the share of the plaintiffs in the suit property. It is true that the instant LPA was brought by the sole appellant (Prabhat Chandra Roy), the contesting defendant in the suit, and he died during the pendency of the appeal and his heirs, male and female, have been substituted in his place. It is equally true that Prakash Chandra Roy, the plaintiff/respondent No. 1 and plaintiff/respondent No. 2 (Smt. Indira Sen Gupta) died during the pendency of the instant appeal. It is not disputed that the plaintiff/respondent No. 1 was unmarried. The heirs of plaintiff/respondent No. 2 are already on record. But the fact remains that the plaintiff/respondent No. 1, one of the male heir, had brought the suit for partition and contested and had appealed against the dismissal of the suit, which was allowed and the decree for partition was passed therein. It is not a case where the suit for partition was not brought by a male heir of deceased Prafulla Chandra Roy, who died intestate. The decision relied on by the learned counsel for the appellants in the F.A. No. 1039 of 1971, Ganpat Ram (supra) is not applicable to the facts and circumstances of the present case. In that case, Guna Devi, the daughter of one person Ram had brought the suit for partition of joint family properties against her brothers and others which also included the dwelling house. The suit was decreed by the trial Court with respect to the properties described in Schedule B and C to the plaint and the defendants therein brought F.A. No. 1039 of 1971 against the decree passed by the trial Court, wherein the judgment/decree of the Court below with regard to partition of the dwelling house was modified because the plaintiff and the other female heirs of person Ram were not entitled to claim partition of the dwelling house, until the male heirs chose to partition the same. In that case, the suit was brought by the female heirs and not by the male heirs of deceased person Ram for partition of the dwelling house.
It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date, the suitor institutes the legal proceedings. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, he is entitled to disenforcement. Later developments cannot defeat his right. The courts procedural delay cannot deprive him/her or their heirs of legal justice or, rights crystallised in the initial cause of action Rameshwar's case (supra). In the instant case, the right to claim partition accrued to the co-plaintiffs, when plaintiff/respondent No. 1 (Prakash Chandra Roy), one of the male heirs of Prafulla Chandra Roy, a Hindu male died intestate leaving behind other heirs, and he had brought and contested the First Appeal with the co-plaintiffs, when the suit for partition was dismissed by the trial Court and merely because during the pendency of the LPA, he or co-plaintiff No. 2 (Jogmaya Roy) as well as the contesting defendant No. 1 died, would not defeat the right of the heirs of co-plaintiff No. 2, or other heirs of the parties for their respective share in the suit property.
In the facts and circumstances of the case, the contention of the substituted appellants that in view of the death of respondent No. 1, during the pendency of the instant appeal, the female heirs of co-plaintiff No. 2 and respondents 5 and 6 are not entitled to a decree for partition of the share in the suit property because of the bar of Section 23 of the Act, is without any merit. The relief for partition of share of respondents 3 and 6 in the suit property can be granted. Points No. (ii) and (iii) are accordingly decided.
10. In the result, this appeal is dismissed. The judgment decree in F.A. No. 134 of 1984 (R) is modified to the extent that the plaintiff/respondent No. 3 and defendant No. 4/respondent No. 6 are entitled for partition of their 1/4th share in the suit property and the preliminary decree for partition is to be drawn up accordingly. In the circumstances of the case, there shall be no order as to costs.
N. Pandey, J.
11. I agree.