Patna High Court
Bishwanath Mahto & Ors vs Taraman Mahato & Ors on 16 May, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.515 of 1980
Against the judgment and decree dated 08.04.1980 passed by Sri Raj
Kumar Tuli 3rd Additional Subordinate Judge, Bettiah in Title Suit No.
267 of 1972/ 342 of 1974.
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Vidya Devi & Ors
.... .... Plaintiffs/Appellants
Versus
Lalita Devi & Ors
.... .... Defendants/Respondents
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Appearance :
For the Appellants : Mr. Shashi Shekhar Dwivedi, Sr. Advocate.
Mr. Binod Shankar Tiwary
Mr. Sangeeta Sharma
Mr. Rajiv Shanker Dwivedi
Mr. Shambhu Sharan Singh
Mr. Viveka Nand Pathak
Mr. Rabi Shankar Dwivedi
Mr. Umesh Kumar Singh-1
For the Respondents : Mr. Rudra Deo Kr. Sinha
Mr. Ravi Ranjan
Mr. Shivajee Pandey
Mr. Jyotendra Kr. Sinha
Mr. Ajay Kumar Sharma
Mr. J.K.Singh
Mr. Pathak Dhananjay
Mr. Binay Kumar Choubey
Mr. Birendra Nath Mishra
Mr. Ram Adya Singh
Mr. Arjun Prasad-1
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 16-05-2012
Mungeshwar 1. The defendants have filed the present first appeal against
Sahoo, J.
the judgment and decree dated 08.04.1980 passed by Sri Raj Kumar
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 2
Tuli, the learned 3rd Additional Subordinate Judge, Bettiah in Title
Suit No. 276 of 1972/ 342 of 1974 dismissing the plaintiffs
appellants' suit for partition to the extent of 1/3rd share.
2. The plaintiffs appellants filed the aforesaid Title Suit No.
267 of 1972/ 342 of 1974 claiming partition to the extent of 1/3rd
share on the ground that the suit property belonged to their ancestor
Kewal Mahto, who died leaving behind Darbari Mahto, Deodutt
Mahto, Jadu Mahto and Raghunandan Mahto. These brothers died in
the state of jointness. Deodutt Mahto died issueless. The parties
were separate in mess and cultivation according to their convenience
since about 30 - 35 years before but there had been no partition by
metes and bounds. Recently the plaintiff demanded partition of the
entire property measuring about 139 bighas of land but the
defendants refused. The plaintiffs accordingly, claimed 1/3rd share in
the suit property. According to the plaintiffs they represent branch of
Raghunandan Mahto, whereas the defendants represent the branch
of Darbari Mahto and Jadu Mahto. It is stated that the co-sharers
have transferred some of the suit lands, therefore, those lands may
be allotted to their respective takhtas.
3. A genealogy has been given at the foot of the plaint. From
perusal of the said genealogy it appears that Kewal Mahto had two
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 3
wives. From the first wife he had two sons namely Darbari Mahto
and Devdutt Mahto. From the second wife he got two sons namely
Jadu Mahto and Raghunandan Mahto. Darbari Mahto had four sons
namely Harihar, Brijraj, Lal Bihari and Sukhraj. Harihar Mahto has
a son Taraman who is defendant No.1. The son of defendant No.1
namely Darogee is defendant No.3, whereas the son of defendant
No.3 is defendant No.4. Brijraj had a son Babulal who is defendant
No.3. Lal Bihari had two sons Inarman (defendant No.5) and
Sunarman (defendant No.6). The sons of defendant No.5 and
defendant No.6 are defendant No.39 and defendant No.9
respectively. Sukhraj has two daughters who are defendant Nos. 7
and 8. Jadu Mahto had 5 sons namely Dhuri, Dhurandhar, Raman,
Saman and Jhaman. Out of them Saman died issuless. The sons and
grandsons of Dhuri are defendant Nos.10, 11, 37 and 38. The sons
and grandsons of Dhurandhar are defendant No.12 to 21. Likewise
the sons and grandsons of Raman are defendant Nos. 31 to 36. The
sons and grandsons of Jhaman are defendant Nos. 22, 24 to 30.
Raghunandan Mahto died leaving behind only son Munshi Mahto.
This Munshi Mahto died leaving behind four sons namely Surajman,
Bishwanath (plaintiff No.1), Durgalal (plaintiff No.2) and Lalbabu.
The sons of Bishwanath plaintiff No.1 are the other plaintiffs. The
defendant Nos. 1 to 3 and 6 to 10 filed separate contesting written
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 4
statement. It may be mentioned here that these contesting defendants
represent the branch of Darbari Mahto. The defendant Nos. 5, 22 to
24, 31 and 32 who are the branch of Jadu Mahto have filed
supporting written statement. According to the contesting defendants
the property had already been partitioned by metes and bounds in
the year 1919 amongst Darbari Mahto, Deodutt Mahto,
Raghunandan Mahto and sons of Jadu Mahto as Jadu Mahto died by
that time. The said partition was affected through Panchayati and all
the Panches signed on the same. The sons of Darbari Mahto,
Raghunandan Mahto and also Jadu Mahto have even been
partitioned themselves inter se. Since Deodutt Mahto had no issue
he gifted all his properties to Dhuri Mahto by registered deed of gift
in 1923 and delivered possession thereof. This registered gift deed
became an eyesore. Besides taking various other legal plea, the
contesting defendants also alleged that the plaintiffs have not
included the family property of Nepal which was allotted to
Raghunandan Mahto in the partition of the year 1919 therefore, the
suit is bad for partial partition.
4. On the basis of the aforesaid pleadings of the parties, the
learned court below framed the following issues :
"1. Is the suit as framed maintainable ?
2. Have the plaintiffs got any valid cause of action ?
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 5
3. Is the suit barred under the law of estoppel,
waiver, acquiescence, resjudicata, limitation, ouster
or under section 34 Specific Relief Act ?
4. Has the suit land been properly valued and the
court fee paid sufficient ?
5. Is the suit bad for any defect of parties ?
6. Have the plaintiffs got unity of title and
possession over the suit land ?
7. Are the plaintiffs entitled to get a decree for
partition, if so to what extent ?
8. Is the suit bad under the principle of partial
partition ?
9. To what other relief (if any) the plaintiffs are
entitled to ?"
5. After trial the learned court below came to the conclusion
that there had already been partition between the parties by metes
and bounds and dismissed the suit for partition.
6. The learned senior counsel Mr. S.S. Dwivedi submitted
that in the plaint the total area is 139 bihga 12 kattha 13 dhur and in
the written statement according to the defendants 36 bigha 3 kattha
12 dhur was allotted to deodutt Mahto, 45 bigha 15 kattha 14 dhur
was allotted to Darbari Mahto, 38 bigha 9 kattha 11 dhur was
allotted to Dhuri Mahto whereas Raghunandan Mahto has been
allotted only 15 bigha 1 kattha 13 dhur. In the written statement it is
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 6
also mentioned that Inarman Mahto, defendant No.5 grandson of
Darbari, was also allotted some land which clearly indicate that
partition was in disproportionate in share and it is shocking to the
conscience of the Court. Therefore, the case pleaded by the
defendants that there had already been partition is not acceptable.
The learned counsel further submitted that the gift deed of the year
1923 is void deed because there had been no partition between the
brothers so a coparcener cannot execute gift deed of the coparcenary
property but the learned court below held it to be valid document
wrongly. The learned court below did not consider the evidences
properly and recorded a wrong finding that there had been partition
by metes and bounds. The learned court below further wrongly
relied upon the opinion of the expert examined by the defendants.
Since both the parties has examined the expert and they gave
contrary opinion, the Court should have form its own opinion on the
basis of the signature appearing on the disputed document i.e.
agreement for arbitration but the learned court below did not
examine the same. According to the learned counsel from naked eye
it will appear that the signature is not of Raghunandan Mahto.
Further even if the award is said to be given by the Panches then
also it is not admissible because it is not registered and unless it is
made rule of the Court, it cannot be relied upon but the learned court
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 7
below gave much emphasis on this document. It is admitted case
that the parties were separate in mess and cultivation according to
their convenience therefore, only because there were separate in
mess and cultivation the court below could not have recorded a
finding that there was conclusive partition by metes and bounds. The
property described in the gift deed is not mentioned in the written
statement, in the schedule it is alleged to have been allotted in the
name of Deodutt Mahto which creates a doubt. The burden is on the
defendants to prove partition by metes and bounds but in the present
case the witnesses examined are incompetent to speak about
partition and the documents produced by the defendants are not
enough to come to conclusion that there had been partition. The
property of Nepal was not ancestral property rather it was the
property of father-in-law of Raghunandan Mahto. The arbitration
agreement of the year 1919 and the award by the Panches are forged
document as it would be evident that the agreement and the award
are of the same date i.e. dated 15.10.1919 which clearly indicates
that in one date in hot haste the said documents were created.
Moreover, since the award is not registered and not made rule of the
court it is not admissible in evidence.
7. The learned counsel next submitted that if there was
partition in the year 1919 then there should have been immediate
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 8
steps taken by the parties for getting their names mutated but in the
present case for the first time the mutation application was filed in
the year 1962. This mutation application was also filed forging the
signatures of different co-sharers and, therefore, co-sharers filed
objection which are Ext.6 series stating that there had been no
partition between the parties and the applications have been filed
forging their signatures. The learned court below without
considering all these aspects of the matter has disbelieved the case
of plaintiffs. On these grounds, the learned counsel submitted that
the impugned judgment and decree are liable to be set aside and the
plaintiffs' suit for partition be decreed.
8. On the contrary, the learned counsel appearing on behalf
of the respondents submitted that the learned court below has
minutely examined all the evidences oral and documentary and
recorded a finding of previous partition. So far denial of signature of
Raghunandan on arbitration agreement is concerned, the defendants
examined the expert who proved his report and the plaintiffs
appellants did not even dare to cross-examine him and, therefore, the
expert evidence of the defendants respondents was unchallenged.
The witnesses examined have admitted that since long the parties
were separate in residence. They also admitted that chaukidari
receipts were granted separately and that the parties were selling the
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 9
property. The defendants have also produced documents showing
the inter se partition between the sons of Darbari. According to the
learned counsel inter se transactions between the parties also took
place and the defendants have produced the documents. The gift
deed itself of the year 1923 wherein it is clearly mentioned that there
had been partition of the ancestral property. Considering all these
documentary evidences the court below has recorded finding that
there had already been partition between the parties.
9. The learned counsel further submitted that so far property
of Nepal is concerned also the Khatiyan has been produced by the
defendants. The plaintiffs never produced any document to show
that the property was the property of father-in-law of Raghunandan.
In the partition of the year 1919 this property of Nepal was allotted
in the share of Raghunandan and subsequently, his son Munshi sold
the properties.
10. The learned counsel further submitted that no doubt, there
is presumption of jointness of Hindu family until it is proved to the
contrary but this presumption is strongest in the case of father and
sons and stronger in the case of brothers. The farther you go from
the founder of the family the presumption will be vary week. In the
present case the plaintiff Nos. 1 and 2 are 4 th generation from Kewal
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 10
Mahto. Likewise the plaintiff No.4 to 7 are 5th generation from the
original founder Kewal Mahto. Likewise the defendants are also
either 4th generation or 5th generation and moreover the four brothers
were from two wives of Kewal Mahto. Darbari and Deodutt from
first wife, whereas Jadu and Raghunandan from second wife. In
view of this fact only on the presumption it cannot be said that there
had no partition particularly, when overwhelming evidence have
been produced by the defendants to prove previous partition by
metes and bounds. On these grounds, the learned counsel submitted
that this first appeal is liable to be dismissed with cost.
11. In view of the above contentions of the parties the only
point arises for consideration in this appeal is whether the parties
have got unity of title and possession over the suit property or
whether there had already been partition by metes and bounds
between the parties and whether the impugned judgment and decree
of the trial court is sustainable in the year of law ?
12. In the present case, both the parties have examined more
than 100 witnesses and also produced documentary evidence in
support of their respective claims. The plaintiffs' simple case is that
there had been no partition between the parties and the plaintiffs
have got 1/3rd share in the suit property. On the contrary, according
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 11
to the contesting defendants there had already been partition
between parties by metes and bounds in the year 1919. From the
genealogy as stated above admittedly, some of the plaintiffs are 4th
generation and some of the plaintiffs are 5th generation from the
original founder Kewal Mahto and likewise contesting defendants
are also either 4th generation or 5th generation. Further the plaintiffs
represent the branch of Raghunandan who was son from second wife
of Kewal Mahto. Now let us consider the evidences one by one.
13. PW 2 has stated that in village Parsotampur there are 40
bigha of land, the parties cultivated these lands according to their
convenience separately except 22 kattha. This 22 kattha is cultivated
jointly. So far this evidence of defendants' witness is concerned it
appears to be a mere statement. When the parties are cultivating the
lands separately why there was joint cultivation of only 22 kattha.
To justify his claim this witness at paragraph 5 stated that all the co-
sharers go jointly on this land and cultivates jointly and grew their
seeds jointly. However, at paragraph 3 he expressed his ignorance of
the situation of the land or boundary thereof. The next witness PW 3
also stated the same thing. PW 5 has stated that 12 bigha of land in
village Parusotampur is jointly cultivated. Therefore, the evidence of
PW 5 is contrary to evidence of PW 2 and 3. According to PW 2 and
3 only 22 kattha is cultivated jointly whereas according to this
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 12
witness 12 bigha is cultivated jointly.
14. PW 6 has stated that 12 bigha land in Khathiya Mathiya is
being jointly cultivated. This is the evidence of PW 8 also. PW 11
stated that in Hanipur, Dharanpur 11 kattha land is jointly cultivated
whereas PW 12 stated that 7 - 8 bihga land is jointly cultivated. PW
13 has stated that orchard of village Pokhariya is joint. PW 23 is the
plaintiff himself. This plaintiff himself is not sure about how much
land is cultivated jointly and how much crop is given to each co-
sharers. Likewise the other witnesses of the plaintiffs stated about
the joint possession of the parties. It is not necessary to go in detail
of the statement of the witnesses because their statement is
according to the plaintiffs' simple case that they are cultivating some
land jointly and some separately according to their convenience. The
plaintiffs have examined PW 21 who is finger print expert. He
compared the disputed signature on Ext.D-1 with the admitted
signature on Ext.-2. According to this witness the signature is not of
the same person. From perusal of the cross-examination of this
witness it appears that he admitted many mistakes such as he did not
apply microscope test, he has not given the basis of grounds of pen
pressure, he has not mentioned the specific report in respect of pen
pressure, he has not mentioned as to which stroke are half, he has
not mentioned specific measurement and detailed differences in
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 13
alignment and arrangement of the letters and many other things.
This witness has proved his report as Ext.5
15. The plaintiffs have produced ext.1 series which are rent
receipt. These are the evidences produced by the plaintiffs to show
that they are still joint and there had been no partition between the
parties.
16. The defendants have examined more than 100 witnesses
and also have proved various documents. The most of the witnesses
examined are formal. The other witnesses examined have stated that
there had been partition between the parties. Therefore, so far oral
evidences are concerned they are according to the pleadings of the
parties i.e. oral evidences versus oral evidences. On the basis of
these oral evidences no finding can be recorded. Admittedly, the
defendants' defence is that there had already been partition in the
year 1919. After more than half century of the alleged partition the
present suit has been filed in the year 1972
17. In the case of Bhagwan Dayal vs. Most Reoti Devi AIR
1962 SC 287 the Apex Court has held that the general principle is
that every Hindu family is presumed to be joint unless the contrary
is proved, but this presumption can be rebutted by direct evidence or
by course of conduct. In the case of old transactions when no
Patna High Court FA No. 515 of 1980 dt. 16-05-2012 14
contemporaneous documents are maintained and when most of the
active participants in the transactions have passed away, though the
burden still remains on the persons who assert that there was a
partition, it is permissible to fill up gaps more readily by reasonable
inferences then in a case where the evidence is not obliterated by
passage of time. Admittedly, in the present case, the partition is said
to have taken place in the year 1919. Many years have passed. From
perusal of the impugned judgment it appears that the court below
considered that most of the witnesses either are incompetent to
depose about partition. Therefore, there is no direct oral evidence. In
view of the decisions of the Apex Court referred to above the
conduct of the parties is also relevant consideration. In the present
case the defendants have produced various documents.
18. Ext-W-1 is a registered deed of agreement dated
21.10.1918between Raghunandan Mahto, Darbari Mahto, Deodutt Mahto and the sons of Jadu Mahto. From perusal of the said documents it appears that the coparceners expressed difficulty to continue as such because of domestic dispute and they desired to partition the property. By this agreement Panches were also appointed who were authorized to partition the entire movable and immovable properties by metes and bounds. Raghunandan Mahto did not sign the documents therefore, no complete partition was Patna High Court FA No. 515 of 1980 dt. 16-05-2012 15 done. No doubt, according to this agreement no partition could be effected but it appears that there was severance in status in the year 1918 itself as has been held by the Apex court in case of Kalyani (dead) by L.Rs. vs. Narayanan & others AIR 1980 SC 1173 that to constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A disruption of a joint family status by a definite and unequivocal indication to separate implies Patna High Court FA No. 515 of 1980 dt. 16-05-2012 16 separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. In this document there is clear recital that there was a domestic dispute and it was difficult to continue as coparceners. In such circumstances can it be believed that the parties continued without actual partition till the date of institution of the suit. The stand of the plaintiffs is that since 30 - 35 years ago they started cultivating lands separately according to their convenience. On calculation it comes to 40-42. This stand of the plaintiffs is falsified by Ext.W-1.
19. Since no partition could be affected according to the above agreement again another agreement was executed between the said persons on 15.10.1919 which is Ext. D-1. Again Panches were appointed and the reason was signed that the properties have been attached in a proceeding under Section 144 Cr.P.C. It appears that pursuant to this agreement the Panches gave decision on stamp paper on 15.10.1919. In this decision the properties were valued and the partition was affected by metes and bounds. In this decision it is also mentioned as to why Darbari Mahto was given more land and it is also mentioned that the Nepal's land was allotted to Raghunandan Mahto.
20. The learned senior counsel Mr. S.S. Dwivedi submitted Patna High Court FA No. 515 of 1980 dt. 16-05-2012 17 that Ext.D-1 do not contain signature of Raghunandan Mahto and, therefore, the decision of Panches is not binding on them. So far this submission is concerned, it may be mentioned here that we are considering the conduct of the parties. We are not considering whether these decisions will be binding on the plaintiff or not. Moreover, the defendants have examined the expert DW 130 who has proved that the signature of Raghunandan Mahto appearing on Ext. D-1 is same signature appearing on Ext.2. It may be mentioned here that no cross-examination has been made by the plaintiffs to this expert. The learned court below considering and comparing the evidences and report of the expert examined by plaintiff (PW 21) and the expert examined by defendant (DW 130) has preferred to accept the report of DW (130). The learned counsel Mr. Dwivedi submitted that the court can examine the disputed signature itself and can arrive at a different finding than the expert. So far this submission is concerned, there is no dispute about this fact but here from perusal of the impugned judgment it appears that the learned court below found various defects in the evidence and report of PW
21. So far report of DW 130 is concerned no cross-examination was made therefore, the expert report of defendant stand unchallenged. It is also well settled principle of law that if on any point no cross- examination is made by the other party than it will amount to Patna High Court FA No. 515 of 1980 dt. 16-05-2012 18 admission of the statement of the fact given by the witnesses. However, I myself looked into both the signature i.e. appearing on Ext.D-1 and Ext.2. No doubt, there appears a slight difference in one or two letters but on the basis of that no definite finding can be recorded by naked eye to the effect that the signature has been forged. I therefore, find no reason to disbelieve the evidence of DW
130.
21. The learned counsel Mr.Dwivedi submitted that it is not possible for the Panches to have entered into the agreement on 15.10.1919 and on the same date they prepared the decision on the stamp paper and also signed the same. Therefore, the documents are forged documents and have been created by the defendants. In reply to this the learned counsel for the defendants respondents submitted that pursuant to the agreement dated 21.10.1918 Ext.W-1 all the field work has already been done by the Panches in anticipation that Raghunandan Mahto will sign the agreement but it failed. In such circumstances, when subsequent agreement was entered into there was no question of making any further field work. Therefore, on the basis of earlier field work the subsequent decision was given when a fresh agreement was entered into between the parties. The argument of the learned counsel for the respondents appears more convincing. Patna High Court FA No. 515 of 1980 dt. 16-05-2012 19
22. From the above facts, it is clear that there was domestic dispute between the parties in the year 1917 itself. The coparceners expressed their unequivocal intention to partition the property. The agreements were executed and Panches were appointed for partition. Panches also gave award. The objection of the plaintiffs is that the award is not made rule of the court or that it is not registered. This is technical objection. Here the expert has given opinion that Raghunandan Mahto also signed Ext.D-1, therefore, there was agreement between the parties. The stamp paper was purchased in 1919 on which the agreement has been scribed. So far this agreement is concerned, it will bind the parties. So far the decision of Panches is concerned, it may be mentioned that the defendant is not praying that the same may be made rule of the Court. It is settled law that even if the decision of Panches is not registered then also it is not a waste paper and is liable to be thrown in the dust bin. It is one thing to say that a right is not created and it is an entirely different thing to say that the right created cannot be enforced without registration. It is also well settled that an award does create rights in that property but those rights cannot be enforced until the award is made rule of the Court. For the purpose of registration act of that has to be seen as to whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in Patna High Court FA No. 515 of 1980 dt. 16-05-2012 20 present or future any right title or interest on the property of the value of Rs.100/- and upwards. Here as stated above the defendant is not enforcing the right created by the award. This document has been produced to show the intention of the parties and the conduct of the parties. Even if the document is not registered then also this fact is not disputed by the plaintiff that decision was given by the Panches in the year 1919. The objection is only that it is not binding on the plaintiff on the ground that it is not registered and not made rule of the Court. Now therefore, the severance of status stands admitted by the plaintiff. Here as stated above we are not deciding as to whether the award will be binding on the plaintiff or not.
23. It may be mentioned here that the plaintiffs did not mention anything about these documents or these facts in the plaint. The settled principles of law that a litigant should approach the court with clean hand and if he suppress any material document or fact he should be thrown out rightly at any stage as has been held by the Apex Court in the case of S. P. Chengalvaraya Naidu (dead) through L.Rs. vs. Jagnnath (dead) through L.Rs. and others AIR 1994 SC 853 : (1994) 1 SCC 1.
24. Ext. A-1 is a registered mortgage deed dated 14.7.1947, executed by co-sharer Babulal Mahto (defendant No.2) in favour of Patna High Court FA No. 515 of 1980 dt. 16-05-2012 21 another co-sharer Jai Kishore Mahto (defendant No.11). In this mortgage deed Taraman Mahto defendant No.1 has signed as witness. Therefore, this deed is inter se transaction between the family members.
25. Ext. B-1 is a registered sale deed dated 14.7.1947 executed by Taraman Mahto i.e. defendant No.1 in favour of Jai Kishore Mahto, defendant No.11. This deed is again an inter se transaction between the family properties. It may be mentioned here that in this sale deed Taraman Mahto recited that he is selling his property. In the boundary of the sold property Rajpati Devi has been shown. This Rajpati Devi is widow of a co-sharer.
26. Ext. E-1 is the register gift deed dated 13.9.1923 executed by Deodutt Mahto co-sharer in favour of Dhuri Mahto father of defendant Nos. 10 and 11. In this registered gift deed it is recited that there had been partition between the parties and he is giving his property in gift. This is also an inter se transaction.
27. The learned senior counsel Mr. Dwivedi appearing on behalf of the appellants submitted that this deed is void deed because a coparcener cannot gift undivided property. So far this submission is concerned, it may be mentioned here that the document is of the year 1923. The person who has executed this Patna High Court FA No. 515 of 1980 dt. 16-05-2012 22 deed of gift has died. There is clear recital in the deed that there had been partition between the parties and he is gifting his properties. For such a long period no prayer was ever made by the appellants for declaration of the deed as void deed or is invalid deed. There is no presumption of invalidity attached to a register document. The register document remained valid on principle that apparent state of affairs is real state of affairs, until facts invalidating the same are established. In this case, the gift deed is registered gift deed. Therefore, unless it is proved that there had been no partition, it cannot be said that it is void document. If the document is not held to be void or invalid, no partition cannot be granted regarding the said property.
28. In the case of Prem Singh vs. Birbal (2006) 5 SCC 353 the Apex Court has held that there is a presumption that a register document is validly executed. A registered document, therefore, prima facie could be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption.
29. Since the document is of the year 1923 at this stage no declaration against the said deed can be granted as has been held by the Apex Court in AIR 2010 SC 211 Abdul Rahim vs. Abdul Jabbar that a suit for cancellation of transaction whether on the Patna High Court FA No. 515 of 1980 dt. 16-05-2012 23 ground of being void or voidable would be covered by Article 59 of the Limitation Act. Therefore, the suit should have been filed within the period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place.
30. In the case of Mohd. Narul Hoda vs. Bibi Raifunnisha 1996 (7) SCC 767 the Apex Court has held that when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have the decree, instrument or contract cancelled, or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suit for cancellation of an instrument which laid down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudged it and order which has to be avoided or cancelled.
31. In the present case, as stated above by this registered gift deed wherein it has already been recited that there was partition, a Patna High Court FA No. 515 of 1980 dt. 16-05-2012 24 tile was intended to be created in favour of the donee. It is well settled principles of law that even in the case of void decree or order the same requires to be set aside by competent court. The Apex Court in the case of Indrajeet Singh Grewal vs. State of Punjab 2012 (1) BLJ has held that even if a decree is void ab initio, declaration to that effect has to be obtained from competent court. Such declaration cannot be obtained in collateral proceeding. In the present case, the plaintiff is trying to show that the gift deed is void document. Since there is no primary relief claimed against this document in the proceeding i.e. in this simple suit for partition no declaration can be made after such a long period because the same will be barred by law of limitation. As discussed above therefore, the plaintiff cannot be allowed to question the validity or otherwise of this gift deed of the year 1923. The learned counsel for the appellants submitted that in this gift deed or any other mortgage or sale deeds there is no reference that there had already been partition between the parties in the year 1919. In other words, there is no reference of partition of the year 1919. So far this submission is concerned, in my opinion, mentioning or referring of partition of the year 1919 will make no difference because the documents are inter se transaction. In the case of Ram Bahadur Nath Tiwari vs. Kedar Nath Tiwari AIR 1977 Patna 59 a division bench of this Court has Patna High Court FA No. 515 of 1980 dt. 16-05-2012 25 held that separate transaction by members of a joint family may not by themselves establish separation but mutual transaction between two members of a family stands on an entirely different footing and they furnish a very strong evidence of separation. In the present case, as discussed above i.e. not only one inter se transaction but there are various inter se transactions.
32. Ext.B, B-1/3 to B-1/8 are various registered sale deeds executed by different co-sharers in favour of purchasers in the year 1959 wherein there is mention of Khas Hissa. Ext.B-1/3 and Ext.B- 1/14 are registered sale deed dated 6.5.1957 executed by co-sharer to strangers wherein there is mention of partition and likewise Ext.B- 1/15 is registered sale deed dated 28.4.1980 wherein also there is mention of partition.
33. Ext. B-1/17 and Ext. 1/1 are registered sale deeds of Nepal property executed by Munshi Mahto father of plaintiff. These sale deeds show that the father of the plaintiff sold the property of Nepal. Ext. VI is the record of right regarding the Nepal land which is recorded in the name of Raghunandan Mahto the ancestor of plaintiffs.
34. The defendants have also produced chaukidari receipts since 1960 to show that the parties have got their separate residential Patna High Court FA No. 515 of 1980 dt. 16-05-2012 26 houses. Ext. D is loan payment receipt by Narayan Mahto. Ext. E series are irrigation Parcha. These documents have been filed to show that the parties are separate and are paying separate irrigation tax. Ext. F-1 is registered sale deed executed by Babulal Mahto on 25.2.1964 which also shows that there is recital that Babulal Mahto sold his Khas land.
35. There are other important documents filed by the defendants i.e. registered gift deeds of the year 1959 and 1964 which have been marked as Ext.A-2 to A-2/4 executed by Rajpati widow of Sukhraj Mahto (son of Darbari Mahto) in favour of her daughters Girja Devi and Champa Devi. In these gift deeds in the boundary of the land the names of other co-sharers have been mentioned. Therefore, from these documents it is clear that even subsequent to the above documents gift deeds are being executed which clearly indicate that there had been partition. It may be mentioned here that none of the sale deeds or these gift deeds of the year 1959-1964 have been challenged by any party.
36. Ext. A-3 is registered mortgage deed dated 1.2.1959 executed by defendant No.2 Narman Mahto. In this deed also it is mentioned that he is mortgaging the land of his Khas Hissa.
37. In view of the above discussion of the evidences now it Patna High Court FA No. 515 of 1980 dt. 16-05-2012 27 becomes clear that there was family dispute between the parties and the coparceners gave unequivocal intention to separate and in fact Panches were appointed who effected partition of the properties in the year 1919. After this partition the parties were dealing the property as exclusive owner of their share. The parties even sold various properties, executed mortgage deeds, gift the properties and there are inter se transactions also i.e. gift deeds and also the mortgage deeds and even the sale deeds have been executed between the members of the family. The parties are residing separately since long. The submission of the learned counsel for the appellants that some of the lands are cultivated jointly is not acceptable because of the fact that when they expressed intention to partition the property in the year 1917 itself how can it be believed that after 1919 the parties continue to be joint till the institution of the suit i.e. more than half century.
38. In the case of Arjun Mahto vs. Monda Mahatain AIR 1971 Patna 215 a division bench has held that separation in food and residence for a long time among the brothers of a Hindu family, independent transaction of property, separate possession and enjoyment of properties are by themselves no doubt, not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers during their life time. In the present Patna High Court FA No. 515 of 1980 dt. 16-05-2012 28 case at our hand, as discussed above since 1919 the parties are residing separately, messing separately, dealing the property separately and even transferring the properties inter se themselves. Therefore, in view of the subsequent conduct of the parties it can reasonably be inferred that there was partition in the year 1919 as claimed by the defendants.
39. The learned counsel for the appellants Mr. Dwivedi submitted that there is so disproportionate partition of the property as claimed by the defendant, which indicates that there was no partition at all. So far this submission is concerned, no doubt, principle of Hindu law is equality of division but inequality in acreage of lands does not invariably lead to the conclusion that there was unequal division of the lands at the time of partition. The division bench referred to above [Arjun Mahto (Supra)] at paragraph 12 the same point was raised by the plaintiff. In that case, considering the facts the division bench has held that it does not invariably leading to the conclusion that there was unequal lands at the time of their partition. In the present case, this is not the case of the plaintiffs that there was partition but because of unequal division it requires further reopening of partition. In the case of Radhamoni Bhuyanin vs. Diwakar Bhuyanin AIR 1991 Patna 95 this Court has held that it is true that even in a case whether a partition has Patna High Court FA No. 515 of 1980 dt. 16-05-2012 29 taken place and if the share allotted to one of the parties is unconscionably disproportionate, it is open to a Court in a given case to reopen partition but in such a case the partition is admitted and then reopened at the instance of the appellants. Here the plaintiff is not admitting the previous partition. When in the written statement the defence is taken that there had already been partition and schedules have been given, now the plaintiff is taking plea that the lands allotted in favour of the plaintiff is disproportionate to his share. In view of the above decision, therefore, this submission cannot be accepted now after more than half century of the previous partition.
40. We have seen above that the cumulative effect of separate residence, mess, transaction, inter se transactions, for long can show that there was partition between the brothers [Arjun Mahto (Supra)]. In the present case, it will not be out of place to mention again that this suit has been filed by the plaintiff who himself is of 4 th generation and likewise the defendants are also either 4 th generation or 5th generation.
41. From perusal of the impugned judgment, it appears that the learned court below considering these evidences came to the conclusion that there had already been partition between the parties. Patna High Court FA No. 515 of 1980 dt. 16-05-2012 30 In view of the above facts, I do not find any reason to interfere with the impugned judgment and decree. I also find that the defendants have been able to prove that there had already been partition between the parties in the year 1919. Therefore, there is no unity of title and possession between the parties. I therefore, find no merit in this first appeal.
42. In the result, this first appeal is dismissed with cost of Rs.10,000/- to be paid by the appellants to the respondents within two months from today, failing which the respondents shall be at liberty to realize the same through the process of the Court.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 16th May, 2012 S.S./ A.F.R.