Patna High Court
Anup Lal Yadav & Ors vs Sital Yadav & Ors on 10 April, 2009
Author: Sheema Ali Khan
Bench: Sheema Ali Khan
Appeal from Original Decree No.411 OF 1974
Against the judgment and decree, dated 30.4.1974 passed by Shri Satyendra
Prasad Sinha, Subordinate Judge, Madhipura in Title Suit No. 2 of 1967.
.......
1. Ramawati Devi, wife of Late Anup Lal Yadav,
2. Radha Devi, daughter of Late Anup Lal Yadav,
3. Upendra Narain Yadav,
4. Bindeshwari Prasad Yadav,
5. Dev Narain Yadav,
6. Tejnarain Yadav,
7. Ram Narain Yadav @ Ram Narain Mandal, all sons of Late Anup Lal Yadav,
8. Satya Bhama Devi,
9. Sail Kumari Devi,
10.Subodh Kumari, all daughters of Late Sarjug Prasad Yadav,
11.Vishwanath Yadav,
12.Dip Narain Yadav, both sons of Late Sarjug Yadav,
13.Kamal Kishore Yadav, son of Late Sarjug Yadav,
14.Jai Narain Yadav,
15.Chit Narain Yadav, sons of Brahmi Yadav,
16.Uma Kant Yadav,
17.Madhur Yadav,
18.Bimal Yadav,
19.Harendra Yadav,
20.Manikant Yadav, all sons of Late Jagdeo Mandal,
21.Sumitra Devi,
22.Radha Devi, both daughters of Late Jagdeo Mandal,
23.Renu Devi, daughter of Late Jagdeo Mandal,
24.Srimati Mhular Devi, wife of Shiv Narain Mandal, all residents of village
Bhelwa Tola Garhiya, PS Madhepura, District Saharsa.
25.Savitri Devi,
26.Rukma Devi, both daughters of Lachhanbati Devi,
27.Anandi Yadav,
28.Bhim Yadav, both sons of Surma Devi,
28.Rekha Devi,
29.Indu Devi, both daughters of Surma Devi,
30.Devi Rani Devi, wife of Late Arjun Yadav,
31.Abhimanye Kumar, son of Late Arjun Yadav,
32.Ranju Kumari, daughter of Late Arjun Yadav, all residents of village
Mohanpur, P.S. Singheshwar, district Madhepura .. .. .. Appellants.
versus
1. Krishnanand Yadav,
2. Ramanand Yadav, both sons of Sital Yadav,
3. Rudra Narain Yadav, son of Rasik Lal Yadav,
4. Bilakchheni Devi, wife of Rasik Lal Yadav, all of village Bhelwa, PS
Madhepura, district Saharsa.
5. Smt. Padma Devi, daughter of Rasik Lal Yadav and wife of Raghunandan
Yadav, village Aran, Ps and Dist. Saharsa.
6. Smt. Shanti Devi, daughter of Rasik Lal Yadav and wife of Bibhishan
Yadav, village Manhara, PS Madhepura, Dist. Saharsa.
7. Smt. Niro Devi, daughter of Rasik Lal Yadav and wife of Raja Ram Yadav,
village Sakarpura, PS Madhepura, Dist. Saharsa.
8. Smt. Khikhari Devi, daughter of Rasik Lal Yadav and wife of Bhato Yadav,
resident of village Garhiya (Balam), PS Madhepura, Dist. Saharsa.
9. Rani Devi,
10.Krishna Devi, both daughters of Smt. Bacha Devi, residents of village
Gachia (Bhelwa), PS and District Madhepura.
11.Smt. Triful Kumari,
12.Sri Arhul Kumari, daughters of Rasik Lal Yadav, village Bhelwa, Tola
Garhiya, PS Madhepura, Dist. Saharsa.
13.Niranjan Devi,
14.Ratan Devi,
15.Salochan Devi,
16.Renu Devi, all daughters of Late Ramji Yadav,
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17.Shivaji Yadav, son of Bhagwat Yadav,
18.Suman Yadav,
19.Khokha Yadav, sons of Late Ramji Yadav,
20.Kailash Yadav,
21.Tarni Prasad Yadav, sons of Naubat Prasad Yadav,
22.Renu Devi,
23.Babalu Kumar,
24.Reshmi Devi,
25.Rami Devi,
26.Sanjai Kumar Yadav, son of Sri Kailash Prasad Yadav, all of village Bhelwa,
Tola Garhiya, PS Madhepura, District Saharsa .. .. Respondents.
...
For the appellants : Mr.Shashi Shekhar Dwivedi, Senior Advocate and Mr. Anish
Chandra Sinha, Advocate.
For the respondents: Mr. Birendra Mohan Singh, Mr. Ganesh Chandra Thakur and
Mr. Ajay Kumar Singh, Advocates.
...
P R E S E N T
THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. The plaintiffs had filed a suit for partition claiming 8 Annas share in the family property. The parties to the suit and the relationships between the plaintiffs and the defendants is indicated in the genealogical table which is given below :
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2. The plaintiffs' case is that Phuli Mandal died in the state of jointness with his two sons. After the death of Phuli Mandal, Hira became the Karta and he died in the state of jointness with Kallar. Kallar Mandal did not become Karta of the family as he was not having the capability to look after the family property. Rather, Neklal Mandal, son of Domal Mandal became Karta of the family as Kallar Mandal was not capable of managing the affairs of the family. Neklal Mandal being a clever and resourceful person taking advantage of the simplicity of Kallar Mandal prepared several documents including rent receipts etc. in his name and in the name of his family members. Nek Lal died in jointness in the year 1942 and thereafter Jasik Lal Mandal became the Karta of the family. After the death of Kallar in the year, 1950-51, the two branches separated in mess only but the properties remained joint. As the plaintiffs felt difficulty in cultivation of the lands, they demanded partition and hence the suit.
3. The case of the defendants is that Hiralal died during the survey proceedings after which Hazari became the Karta of the family.
After the death of Hazari Mandal, his son Kallar became the Karta of the joint family in the year, 1922. Neklal Mandal, Nanki Mandal and Kalhar Mandal separated from each other and the family divided the properties between the three branches and separate Tekhtas were prepared which were reduced in writing. It is the specific case of the defendants that the joint family did not have any source of income to acquire the property, rather, Neklal Mandal acquired certain lands from the income which he derived from his business. It is further stated that Neklal Mandal received gifts from his father-in-law from which he acquired certain plots of lands. The 4 document of partition was prepared in three copies and was given to each branch of the family. The said partition was made amicably between the brothers. It has also been stated that in order to establish peace and harmony in the family, particularly as the branch of the plaintiffs were allocated 5/4th share instead of 4 Annas. Neklal Mandal agreed to divide the lands of Khata nos. 54 (ka) and 55 in Mauza Belbha Tola again after the partition. Similarly lands of khata no. 123 which was purchased by Neklal Mandal was also divided and portion of the lands allocated to the plaintiffs' branch. It is also the specific case that certain lands which were with the family who were the mortgagee of the lands were subsequently purchased by the family and these lands were also part of the partition effected in 1922. Certain lands mentioned in Schedule 'D' of the written statement were kept common to the three branches.
4. On the basis of the aforesaid pleadings, the defendants claim that the suit for partition is not maintainable. It may be mentioned here that the joint family property, according to the defendants, was about 100 bighas and subsequently it is said that Neklal Mandal purchased another 100 bighas or more of lands in his own name.
5. The court below has come to a finding that Exts. 'D' and 'D/1', the documents of partition in 1922 was a valid document and has dismissed the plaintiffs' suit. Apart from the partition deed the court below was impressed and swayed by the documents showing mutation of the lands and the rent receipts filed by the defendants to hold that partition had already been effected in 1922 and the parties have come into possession of their respective shares and were paying separate rent in accordance with the allocations of their share.
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The questions that has to be considered by this court are:
(i) Whether according to the evidence the plaintiffs have been able to show that a partition did not take place in 1922 ?
(ii) Whether the documents of partition requires
registration?
(iii) Whether on the basis of the documents of partition it
could be held that the 1922 partition was equitable?
(iv) Whether the defendants have been able to show that
they have subsequently acquired large portion of lands?
6. The court below has held that there was a previous partition of the joint family properties by virtue of the Sada document of partition prepared in 1922. The court has also heavily relied on the rent receipts produced on behalf of the defendants from the years 1938-39 to show that there was a partition and rent were separately paid in the names of the defendants in accordance with their share. The evidence of witnesses with respect to jointness has been disbelieved by the court below and the court has also brushed aside the sale deeds executed jointly in the year 1953 and, therefore, held that there was a previous partition in 1922 and, thus, dismissed the plaintiffs' suit.
7. The main issue before this court revolves around the fact that whether the plaintiffs/defendants can by way of their pleadings and evidence prove that there was a partition in the year 1922. It is not disputed that the document of partition was on a Sada paper and was not registered one.
8. Before proceeding I may state that the 1922 document of 6 partition was destroyed in the Patna High Court during 1975 floods and, therefore, the parties agreed that this court on the basis of comments of the trial court, may proceed to consider this document.
The main argument on behalf of the plaintiffs is that the deed of partition of the year 1922 should be rejected by this court in view of the fact that it is not registered and has relied on case laws to substantiate their submissions. It would, therefore, be relevant before discussing the law on the question to examine the pleadings with respect to partition which took place in 1922 and the evidence led by the parties to show that the properties were partitioned or alternatively as pleaded by the plaintiffs remained joint. The plaintiffs have specifically pleaded that the properties remained joint and there was no partition by metes and bounds between the members of the family. As opposed to the plaintiffs' pleadings, the defendants at paragraphs 6 onwards have stated that the lands of the joint family were amicably divided into three separate takhtas of equal share by way of amicable family settlement and have further given the list of lands which were given to the branch of Kallar Mandal as Schedule 'A', Neklal Mandal and Jasiklal Mandal as Schedule 'B' and Nanki Mandal as Schdule 'C'. It is further pleaded by them that each of the three branches were given copy of the family settlement. Their case is that the lands of khata no. 54Ka and 55 of Mauza Belba Tola Dariha was khas land of Neklal Mandal but Kallar Mandal insisted to have a share in those lands as well and as such by way of amicable family settlement in order to establish harmony in the family particularly because the branch of Kallar Mandal was getting less than his share instead of 4 Anaas share, Neklal Mandal agreed to divide the aforesaid lands again after the partition. With respect to khata no. 123 it is said that 7 Kallar Mandal demanded further partition and in order to pacify Kallar Mandal,2 bigha, 16 kathas and 16 dhurs of lands comprising plot nos. 1382, 1806, 1894 and 1970 were also given to Kallar Mandal as the defendants have also explained that about 5 bighas, 3 kathas and 7 dhurs and 15 dhurkis of khata no. 54K and 55 were then in Sudbharna of Neklal Mandal and the said lands were also divided in the aforesaid partition of 1922 but subsequently the three branches of the family purchased those lands which were later partitioned.
9. The further case of the defendants is that Schedule 'D' lands of the written statement were not divided in 1922 partition and were kept common. It is also the claim of the defendants that Neklal Mandal used to carry out small scale business with separate funds which he had got from his father-in-law and out of his income had purchased certain lands and that the plaintiffs have no title or interest with respect to those lands. On the basis of these pleadings the defendants' case is that the parties were not joint after 1922 partition.
10. This court will refer to the evidence regarding the respective cases set out by the plaintiffs and the defendants.
11. PWs 5, 6, 9, 10 and 11 are the Bataidars who have stated that they were cultivating the lands on behalf of the joint family. The defendants have also produced witnesses who claimed to be cultivating the lands as Bataidars of Sital Mandal and they are DWs 13, 14, 15, 19 and 20 who have tried to show that they used to cultivate the lands and give the usufructs to Sital Mandal only.
12. On perusal of the evidence of the witnesses I find that the plaintiffs' witnesses are able to give the boundary of the lands which 8 they were cultivating whereas the defendants' witnesses have not been able to state the boundary or the plots which they were cultivating.
13. PW 1 has stated that he has land just next to some plots of lands of the plaintiffs and defendants. According to him the parties jointly cultivated the lands. It is stated by him that separate plots of lands are ploughed by different members of the family. PW 2 is related to PW 1 and according to him the family possessed 200 bighas of lands and is unable to give the details regarding the plots of land. The only relevant fact is that he has stated that the parties jointly cultivate their lands. PW 3 in fact does not support the case of the plaintiffs. According to him some lands are cultivated by Anup Mandal whereas other lands are cultivated by Bhagwat. PW 4 states that Neklal @ Manik Mandal was Karta of the family and gives details with respect to death of the family members. This witness was on litigating terms with Sital Mandal. He in fact does not support the case of the plaintiffs, rather, he states that the lands were separately cultivated by various members of the family. PW 7 has stated that he has no direct connection with the parties but he is aware of the fact that the parties jointly possess 200 bighas of lands. PW 8 has been examined to show that the father-in-law of Neklal Mandal lived in the village of this witness and he was not very rich. PW 12 is plaintiff no.2 of the suit. PW 2 is Upendra Narain Mandal, son of Anup Mandal. This witness gives the genealogical table which is not disputed by the parties. According to this witness lands of khata nos. 32, 68Ka and 377 were sold by Anup, Saryug and Laxmiwati Devi in 1953 which is Ext '2'. This witness also states that there was no partition between the parties and the lands were subsequently purchased by the joint family funds as the family had about 200 bighas of lands which 9 gave a sufficient income to purchase further lands. This witness has stated that it is incorrect on behalf of the defendants to claim that the lands were divided into three shares. In fact no partition ever took place. This witness has further stated that he has never paid rent or Chowkidari tax. He is also not aware as to the manner in which rent receipts were prepared. On recall plaintiff no.2 has denied the signature of Anup on the mortgage deed (Ext. 'Q'). On suggestion Upendra Narain has denied that he has ever visited the block office and got rent receipts prepared with respect to the alleged share of lands. The evidence of PW 13 is not very relevant for the purpose of this case.
14. On summarizing the evidence it would be evident that the plaintiffs have tried to show that the properties were jointly cultivated and that the case made out by the defendants that there was a partition in 1922 remains un-substantiated. In fact, the defendants have not clearly cross examined the witnesses to try and demonstrate that they were in possession of lands according to the shares allocated to the plaintiffs' branch since 1922 partition.
15. The defendants have examined thirty seven witnesses to prove their case. DW 1 Yogendra Pd. Has proved rent receipts Exts. 'A' to 'A/7' which is in the hand writing of Narain Lal. DW 2 has proved Exts. 'A/8' to 'A/33' which is in the hand writing of Kuldip Narain Mandal. DW 3 has proved exhibits A/34 to A/40 which is in the hand writing of Jeev Narain Lal. These witnesses have all stated that the rent receipts were not prepared in their presence. DW 4 has been produced to prove the deed of exchange (Exts. 'B' and 'C'). DW 5 has been produced to prove a sale deed (Ext. C/1). However, in his cross examination he denied the knowledge of 10 the said document. DW 6 has tried to show that Sital is in possession and cultivates about 16 bighas of lands in his village. In the cross examination he denied knowledge of the said document. DW 6 has tried to show that Sital is in possession and cultivates about 16 bighas of lands in his village. In cross examination he has not been able to given the boundary of the lands in question. DW 7 has been produced to prove Exts.A/45 to A/57 and A/60 to A/89 which are rent receipts prepared by two different Karmcharies. This witness admits that the receipts were not prepared in his presence and he has not prepared any rent receipts in the name of Sital Mandal or others. DW 8 has tried to show that there was a partition between the three branches of the family. In cross examination he has not been able to support the case that he has made out in the chief inasmuch he says that he has no idea regarding the details of the lands although he claims that some of his lands are in the same village as that of Sital. He clearly states that he has no idea as to the specific lands cultivated by each members of the family or any one of them. Therefore, this witness has not been able to show that there was a partition between the branches of the joint family. DW 9 has proved Exts. A/92 to A/114, the receipts prepared by Ram Gulam Lal and Exts. A/125 to A/132 and A/133 to A/158 which have been prepared by different Karcharies. DW 10 is the Panch who had participated in preparation of the partition deed of 1922. His evidence is completely unreliable in view of the fact that he claims that his date of birth is 1909 which would mean that in 1922 he would be hardly 12-13 years old. This witness in fact demolishes the case of the defendants of partition of the year 1922.
16. DW 11 has proved Ext. C/2 which is a sale deed executed by Rameshwar Pd. Bhagwat. DW 16 has purchased about 16 11 kathas of land from Sital vide Ext. C/5 and claims to be in possession of the same. He has further stated that the lands which he had purchased from Sital were part and parcel of land which was purchased by Sital measuring about 13 bighas. DW 17 is the Karmchari. This witness had been working since 1965 in the concerned block as a Karmchari. According to him rents were separately paid by Bhagwat, Naubat, Malik, Jasik and Sital and Rudra Narain. In cross examination he has further stated that the husband of Ram Kumari used to pay rent on her behalf. This witness further states that he has not met Malik Mandal since eighteen to twenty years. This witness has stated that by order of the State Government jamabandi has been jointly prepared since the year 1963 in the name of the parties. Apparently, it appears that the plaintiffs had protested against the creation of a separate jamabandi and as such since 1963 a single jamabandi has been created.
17. DW 21 has been produced on behalf of Malik Mandal to show that the in-laws of Malik had sufficient means of income and had given him some money. However, this witness is not very reliable as he admits to be an accused in a murder case.
18. DW 23 aged about seventy six years claims to be one of the Panches at the time of partition. He also claims that he is purchaser from Bhagwat. It is said that the lands he had purchased belonged to Bhagwat and was not part and parcel of the joint family property. In cross examination this witness fails to establish that he was present at the time when the partition was made between the parties. This witness admits that some of the properties are joint even today. According to this witness, the plaintiffs and the defendants had no dispute before the filing of this case. According to me this witness has failed to substantiate his claim that he was a witness to the 12 partition deed; more significant is the fact that he claims that there was no signature of the Panches on the partition deed.
19. DW 24 is the Dafadar of Circle no. 5. An attempt has been made by the defendants to get the chowkidari receipts proved by him which have been marked as Exts. K/1 to K/5 issued by different persons. This witness states that the Dafadar is not responsible for maintaining the records of chowkidari receipts.
20. DW 25 has also proved the chowkidari receipts. He is Sarpanch of Circle No. 5 since 1960. He claims to identify signatures of persons who had issued the receipts.
21. DW 26 was a Panchayat Sewak from 1954 to 1972. He has prepared the Parivarik Pustika. According to him the parties lived separately. He claims to identify the signature of the Patwari who had issued receipts at Exts. A/24 to A/284. However, this witness claims that he has lands near the lands of the defendants, he could not give details regarding the shares allocated to the defendants or the plaintiffs and as such is not very reliable.
22. Similarly DW 27 has proved several rent receipts which are Exts. A/285 to A/291 and so on. These are Malguzari receipts.
23. DW 28 produced the documents from the record room.
24. DW 29 has produced Sanha (Ext. 2) which is not part of the paper book and the relevance has not been pointed out by either of the parties during the hearing of this appeal. As such this court will not make any comment on the Sanha (Ext. 2).
25. DW 30 has proved Ext. C/5 which is a sale deed signed by Anup, Sital and Bhagwat. This witness has also proved sale deeds, 13 Exts.,C/10 and C/11 and the rent receipts at Exts. A/323 to Exts. A/330.
26. DW 31 Sital Yadav is defendant no.1 in this case. He has made out a case that after partition in 1922, there was further partition between Neklal Mandal and Jasiklal Mandal. It is claimed that Jasik separated twelve years back from Neklal. The defendants claim that after the partition, the parties have been dealing with their respective shares and Malik Mandal has sold and purchased several bighas of lands. This witness took a long time in giving evidence before the court so much so that the court has remarked that the witness used to take too much time in answering each question and persisted in doing so in spite of court's warning and the warning of his own lawyer.
27. After the aforesaid comment, the cross examination began. In the cross examination he virtually demolishes the case made out in the chief as he has not been able to give details with respect to the partition and possession of the properties of three branches of the family. At one place this witness has stated that there is no paper prepared with respect to the partition. He could not state as to how his father had the income to purchase lands. According to him, his Nanihal was very rich and they had 300 bighas of land. His branch of the family got 51 bighas of land after partition and Jasik got half of that land on further partition.
28. DW 32 was the Karmchari from 1957 to 1966.
According to him Anup used to give Malguzari separately whereas others also gave him Malguzari. Sital, however, never paid Malguzari to this Karmchari. According to him he used to come to the house of the plaintiffs and the defendants and took money for payment of Malguzari. It is stated that they used to live separately. The defendants have tried to show that 14 Malguzari was being paid separately by three branches of the family.
29. DW 33 who is scribe of the sale deeds proved Exts. C/7, C/8 and C/9.
30. DW 34 is the son of Bhagwat. According to him after the partition of 1922, his father acquired several lands through different sale deeds. It has been said that he has not been able to produce two of the sale deeds. This witness is only relevant for stating that there was a partition in 1922. He fairly concedes that since he was not born at that time, he cannot give any details regarding the said partition. Therefore, he is not useful for substantiating the claim of the defendants.
31. DWs 35 and 36 have proved rent receipts issued by different Karmcharies.
32. DW 37 has stated that Anup Mandal was very sick and he could not do any work. Anuplal is the uncle (Phupha) of this witness. He has stated that Anuplal is being treated for madness. This witness seems to demolish the case of the defendants that Anuplal Was the Karta of the family or that he used to pay rents on behalf of his branch of the family as according to DW 37 Anuplal was always mentally unstable and weak.
33. I have discussed the evidence of the witnesses only because this aspect has not been addressed by the trial court. The facts which emerge on perusal of the evidence are that the defendants have not been able to show that in fact there was a partition in 1922 as the witnesses examined on this aspect have not supported their case. The evidence also do not disclose as to how the defendants after 1922 acquired 100 bighas of lands. At the most it may be said that Neklal has disclosed that he had bought 12 bighas of land out of the income from his business. These aspects will 15 further be discussed while specifically dealing with the so called partition deed.
34. On behalf of the plaintiffs, learned counsel submits that the partition documents of 1922 requires to be registered under section 49 of the Registration Act and if it is not so registered, it cannot be taken in evidence. It is further contended that the factum of partition will not be admissible by reason of section 91 of the evidence Act, 1872.
35. On the other hand, it has been argued on behalf of the defendants that where the partition has taken place and subsequently a document is prepared allocating the shares, the document does not require to be registered. Learned counsel bases his submission on the decision in the case of Roshan Singh vs. Zile Singh, AIR 1988 SC 881.
36. The facts of the case were that there was a partition of the agricultural lands in 1955 which was embodied in a memorandum of partition and in terms of the said partition, parties got their names mutated in the records of right and remained in separate and exclusive possession of their respective shares. There was a dispute with respect to raising a boundary wall on the residential portion of the land which had not been partitioned and which led to the suit. The court held that the document was not an instrument of partition but was a memorandum regarding the decision arrived at between the parties. The court further observed that it is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relationship to the parties divided amongst the parties to it requires registration under section 17 (1) (b) of the Act. Writing it merely recites that there has in time past been a partition is not a declaration of sale 16 but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of partition transaction or contains merely an incidental recital of a previous completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should by its own force operate or purport to operate to create or declare some right in immoveable property. Therefore, a mere recital of what has already taken place cannot held to declare any right and there would not be a necessity of registration of such a document.
37. Two propositions, therefore, must flow. A partition may be effected orally; but if it is subsequently reduced into form of a document and that document purports by itself to effect a division and embodies or terms of bargain, it would be necessary to register it. If it is not registered, section 49 of the act will prevent it from being admitted in evidence. Secondly, evidence of the factum of partition will not be admissible by reasons of section 91 of the Evidence Act; partition lists which are mere records to previous completed partition between the parties will be admitted in evidence even though they are registered to prove the fact of partition. There are a catena of decisions for this proposition, such as, in Bageshwari Charan Singh vs. Jagarnath Kurari, AIR 1932 PC 52 and Subramanian vs. Luchman, AIR 1923 PC 50.
38. Having referred to the law on the subject with respect to registration of a memorandum of partition, I will now examine the facts of the present case.
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39. From the pleadings of the defendants, it is clear that by the document prepared in 1922 the joint family lands were amicably divided into three separate takhtas of equal share by family settlement. The pleadings of the defendants at paragraphs 6 and 7 indicate that it is their case that in 1922 there was a partition and a list of lands was prepared for each of the three branches of the family. A copy of this list was allegedly given to the three branches. The question that arises before this court with respect to aforesaid 1922 partition is that whether in fact there was a memorandum of partition prepared by the family or whether this document has been created for the purpose of this case. Therefore, there are two aspects of the matter. One, if it is held by this court that there was a memorandum of partition prepared in 1922, whether the said document requires to be registered before it can be treated to be admissible in evidence under section 91 of the Evidence Act and whether in fact there was such a memorandum of partition prepared by the family of the plaintiffs and the defendants.
40. This court would require to answer the second proposition first. The test as to whether the partition took place between the plaintiffs and the defendants would depend upon a number of factors. First, I shall deal with the oral evidence on this point. The defendants have made out a case that there was a discussion and after deliberation it was attended not only by family members but also by certain outsiders i.e. Panch appointed by both the branches of the family after that the documents were prepared. Two of the Panch who were present at the time of preparation of memorandum of partition have been examined in the suit as DWs 10 and 23. DW 10 claims that he was present at the time of preparation of the deed of 1922. He states that his date of birth was 1909 which would make him 12-13 18 years of age at the time of preparation of 1922 deed of partition. This witness gives a fatal blow to the case of the defendants. DW 23, on the other hand, states that he was also a Panch. According to him no proceedings were recorded and the document does not bear his signature to substantiate that he was present at the time of preparation of the document. Therefore, both the witnesses of the defendants on this issue have not supported their case.
41. The division of the properties itself is inequitable. From the genealogical table it would appear that the property ought to have been divided into two takhtas; one to be allotted to the branch of Hira Mandal and other to the branch of Hazari Mandal. Instead the plaintiffs have come up with a case that the property was divided into three takhtas. Two takhtas went to the branch of Hira and his two sons Domal Mandal @ Deonath Mandal and Nanki Mandal. No explanation whatsoever has been given to explain inequitable distribution either in the evidence or the document itself. Also there is no comment on this aspect in the judgment of the trial court.
42. The defendants in their pleadings have merely said that the parties agreed to divide the shares in three parts but have not given any reason as to why the parties agreed to do so. Moreover, there is no pleading with respect to the date, manner, and thereby there was a departure from the general rule of partition which leads me to conclude that in fact this document has been prepared by the defendants for the purpose of the suit.
43. My view is further fortified by subsequent acts of the defendants. Certain properties which were in Sudbharna were also included in the so called memorandum of partition. These properties were later purchased by the family in the joint names of all branches of the family. These anomalies show that the family continued to treat the properties as 19 joint family. It has been explained by the defendants in the written statement by saying that as there was an inequitable partition, certain properties subsequently purchased by Neklal were handed over to the branch of Anup Mandal. Two such properties have been mentioned at paragraph 6 of the written statement being khata nos. 54Ka and 55 of Mauza Kelba Tola Ghariba and lands appertaining to Khata no. 123. It appears that in 1956 also the family jointly donated some land to the Government for the purpose of a school. In 1953 vide Ext. 2, Rasik Mandal, Sital Mandal, Anup Mandal and others jointly executed a sale deed. These facts lead this court to conclude that the parties continued to be in joint possession and were dealing with the properties jointly. The circumstances aforesaid lead this court to definite conclusion that in fact no partition took place in the year, 1922.
44. The second proposition as to whether the document would have required registration, therefore, does not arise in this case. Suffice it to say that on the facts of this particular case, it would appear that the document of 1922 would fall within the first proposition as laid down in the case of Roshan Singh (supra). The trial court has placed great reliance on rent receipts, chowkidari receipts which according to the court below shows that the defendants had got their names mutated and were paying rent to the State of Bihar. The mere fact that the names of some of the defendants were mutated in 1938 would not indicate that there was a severance in the joint family. There is strong presumption in favour of Hindu brothers constituting a joint family and it is presumed that the Karta of the family would be dealing with the joint family properties and taking all steps for paying of rent, chowkidari tax, water tax etc. The defendants have produced more than a hundred rent receipts to show that they had come into possession of their 20 respective shares and got their names mutated. Surprisingly the records do not indicate that in fact the plaintiffs had been paying rent separately.
45. The defendants' case is that some 45-50 bighas of land was allocated to the branch of Kallar Mandal and Anup Mandal was Karta of the family. However, no rent receipts etc. have been produced or records of mutation of cases to show that Kallar as Karta of the family was paying rent to the State of Bihar or to the ex-landlord. In fact the defendants have not even cross examined the plaintiffs' witnesses or plaintiff no.2 on this aspect. The plaintiffs' case, on the other hand, was that Anup Mandal was never the Karta of the family as he was mentally unstable and in fact Domal Mandal was the Karta and was dealing with the joint family properties. This fact appears to be substantiated by the manner in which mutation of the lands were done.
46. The plaintiffs' case is that there was a partition in mess some time in the year 1950 between the parties and some of the lands were dealt with jointly whereas other lands were partitioned by the parties. It is the case of the plaintiffs that there was no partition by metes and bounds and as such they claim that the lands described in schedule of the plaint should be partitioned between the family members according to their respective shares.
47. The defendants filed an application under Order 41 rule 27 of the Code of civil Procedure bringing on record sale deeds executed by the plaintiffs' branch in the years, 1991, 1994, 1997, 2004 and 2007 purportedly to show that there was a partition between the family members and that the plaintiffs were also selling the portion of plots allocated to them. However, this application was not seriously pressed. Besides this, I find that 21 the pleadings are incomplete as it does not show that the lands allocated are subject matter of the sale deed which have been annexed to IA No. 4833 of 2008 filed on 30.8.2008 after the matter had already posted for hearing. In reply to the application under Order 41 rule 27, the plaintiffs have stated that the defendants have sold several lands belonging to the joint family property at a price which is much lower than the market value of the lands. It has further been alleged that in fact the lands have been sold after the appeal was filed and pending decision by this court.
48. I find that both the parties have made allegations and counter allegations with respect to sale of properties during the pendency of the appeal. The question is whether these documents should be admitted in evidence. In my view since the sale deeds were executed after the appeal was filed in this court, it would be proper to admit them in evidence subject to the parties producing them in the court below at the time of preparation of the final decree. It would be essential to take such sale deeds into consideration at the time of allocation of the shares of the parties and the court below would be well advised to club all such properties which have been sold by either of the parties in their respective shares.
49. In view of the aforesaid findings, I find that the plaintiffs are entitled to partition by metes and bounds of the lands mentioned in the Schedule of the plaint. The judgment impugned is set aside.
50. In the result, this appeal is allowed but with no order as to costs.
(Sheema Ali Khan, J.) 22 Patna High Court, April 10 , 2009.
A.F.R. / haque