Patna High Court
Janandan Rai And Ors. vs Mandeo Rai And Ors. on 21 January, 1997
Equivalent citations: AIR1997PAT124, 1997(45)BLJR940, AIR 1997 PATNA 124, 1997 BLJR 2 940, (1997) 1 BLJ 964, (1998) 1 CIVLJ 53
JUDGMENT Dharmpal Sinha, J.
1. In this appeal, which has arisen from a suit for redemption of a usufructuary mortgage, the substantial questions of law formulated for decision, are as follows :
"(1) Whether the entry of the name of Mostt. Isara Kuer (name) in Ext. C, Re-visional Survey Records showing her share in the suit property, is evidence of severance of the joint status?
(2) Whether the inclusion of the name of Mostt. Isara Kuer in Ext. B, Zarpeshgi deed, further proves that the definition of the shares in the Revisional Survey was with a view to show partition in the family?
2. The relevant facts necessary for decision of the questions may briefly be stated as follows:
The Respondents in this appeal, who were plaintiffs in the suit (appellants in the first appeal) had instituted the suit for redemption of mortgage after depositing the necessary mortgage money under Section 83 of the Transfer of Property Act. The suit related to redemption of usufructuary mortgage created by the mortgage deed (Ext. B) that had been executed on 7-8-1941, relating to 1 Bigha 13 kathas and 12 dhurs of land, by two widows -- one Mostt. Maweshra Kuer and one Isara Kuer.
3. The respondents claim to have purchased the mortgaged land under a sale deed executed on 11-7-1964 from the successor-in-inlerest of Maweshra alias Masara Kuer, who was widow of Sital Pandey, one of the two sons of one Hari Pandey.
4. On the other hand the appellants in this appeal, who were defendants in the suit (and respondents in the first appeal) contested the suit and claimed to have acquired title over the mortgaged land by virtue of purchase under a sale deed executed on 29-8-1964 from successor-in-interest of Isara Kuer, who was widow of one Tulsi Pandey, who was the other son of Hari Pandey.
5. There was, admittedly, a common ancesstor, Hari Pandey, who had two sons Sital Pandey and Tulsi Pandey, Sital Pandey had two sons, one of whom died'in childhood and the other was Ramnath. Tulsi Pandey died long back before Sital Pandey leaving behind his widow, Isara, and when the Re-visional Survey had been prepared Sital Pandey had also died, and the name of his son Ramnath and the widow of Tulsi, named, Isara Kuer were recorded in the Revisional Record of Rights. Later Ramnath had also died unmarried and his mother, Maweshara Kuer along with Isara Kuer had executed the usufructuary mortgage deed (Ext. B). In the Record of Rights, which has been brought on the record as Ext. C, an entry had been made indicating that both the recorded tenants had equal, share (BAHISSA BARABAR). According to the case of the respondents Tulsi had died issueless when he was joint with Sital and after his death, his entire interest in the land in question passed on Sital Pandey by the Eaw of Survivorship; and Tulsi's widow, Isara got only maintenance and was living with the other branch. According to the respondents after the death of Sital and another son of Sital, (Ram Dhyan) who died in the childhood, Ramnath alone had interest in the mortgaged land, but only for her satisfaction the name of Isara Kuer was also recorded in the record of rights along with that of Ramnath, though she had no right, title or interest in the land in question.
6. As regards execution of the mortgaged deed (Zarpeshgi) on 7-8-1941 by both Isara Kuer and Maweshra, it was their stand that joining of Isara was not needed as she had no interest in the land, that was mortgaged, because according to their case, as indicated above, all the interest of Tulsi after his death long back had gone to Sital by the Eaw of Survivorship, and after Sital to Ramnath and then to the heir of Ramnath, namely, Mashara whose successor-in-interest could transfer the same to the respondents.
7. Appellants on the other hand took the stand that there was already a severance of joint status between Sital Pandey and Tulsi Pandey before Tulsi had died and they had separated in mess, although there was no partition by metes and bounds, between them of the lands, which belonged to the two brothers previously. According to them because of the fact of separation between Sital and Tulsi at the time of death of Tulsi, the title and interest of Tulsi in the land vested in his widow, Ishara Kuer and on death of Sital, Ramnath had interest in the property of Sital only and both Ramnath and Ishara had therefore half share in the mortgaged property and accordingly record of rights' had been prepared showing that both had equal shares. Subsequently, in the year 1950, by partition by metes and bounds, the mortgaged land came to be allotted to the share of Isara, whose daughter was one Darpania and they purchased the land from Darpania and her sons.
8. There was different stand taken by them on two further aspects --- one was with regard to the question whether there was partition by metes and bounds between the successor-in-interest of Mashara and Ishara in the year 1950. The stand taken by the appellants was that there was a partition by metes and bounds in the year 1950 and according to the partition the entire mortgaged land came to be allotted to the successor-in-interest of Ishara from whom they had made purchase under a sale deed executed on 29-8-1964.
9. On the other hand the respondents' stand was that there was no partition and according to them entire interest in the properties in question had come to Ramnath and then to Mashara and then to vendors of the respondents, and because Ishara had no right, title and interest, which could be by her successor-in-interest to the defendants-appellants.
10. There was one more issue in this regard as to whether or not one Darpania was a daughter of Ishara Kuer. According to the stand taken by the Respondents Darpania was the daughter of Ishara and Tulsi but the . stand of the other party (appellants) was that she too was the daughter of Mashara.
11. The learned trial Court on the aforementioned conflicting stand taken by the parties framed the issues Nos. 4, 5 and 6, which read as follows:
"4. Whether Tulsi and Shital were joint?
5. Was there any partition between Ishara and Mawesara in 1950 as alleged by the defendants?
6. Is Darpania daughter of Shital or Tulsi and did she inherit any property from Ishara?"
12. On issues Nos. 5 and 6 there are concurrent findings of both the Courts below that there was no partition by metes and bounds in the year 1950 as had been alleged by the defendants (appellants herein) and that Dai'pania was the daughter of Tulsi and Ishara, and not of Sital. On issue No. 4--whether Tulsi and Sital were joint, the finding of the trial Court was that they were separate when Tulsi died. The trial Court decreed the suit in part on this finding. The learned first appellate Court had reversed the finding of the trial Court in this regard and has decreed the suit as whole come on the finding that they were joint, and after death of Tulsi, his widow Isara could not claim interest in the property of Tulsi, which passed only on Sital by survivorship and by virtue of purchase from daughter's sons of Masara, the plaintiffs acquired right to redeem the whole of the mortgaged land.
13. Learned counsel for the appellants had contended that the learned first appellate Court has reversed the finding of the trial Court by not giving due legal weight to the entry in the survey record of rights (Ext. ( ) and the effect of fact of execution by both of them of the Zarpeshgi deed (Ext. B). According to his submission, the learned 'first appellate Court in giving that finding has wrongly relied on the decisions reported in AIR 1960 Pat 548 and AIR 1966 SC 405. According to him the ratio of the decisions reported in AIR 1939 Pat 23 and AIR 1938 PC 65 have been ignored by the learned appellate Court, and the ratio of the decision reported in AIR 1939 Pat 23 would be applicable to the facts and circumstances of the case. His submission in this regard is that the learned trial Court had considered the entry in the record of rights (Ext. CJ and the fact of execution by both the widows of Ext. B (Mortgaged deed) along with the oral evidence, and the finding of the learned lower Court in this regard has been reversed by the first appellate Court on misappreciation of the legal effect of Ext. C and join execution of Ext. B. He has conceded that the entry in the record of rights (Ext. C) may not be conclusive piece of evidence to prove partition but certainly it is a good piece of evidence, which has to be given legal effect, as presumption of its correctness has to be given to it by law and the decisions of larger Benches on this point have been ignored by the first appellate Court.
14. On the other hand learned counsel for the respondents has submitted that from the various decisions as reported in AIR 1920 PC 46, AIR 1925 PC 93, AIR 1925 PC 132, AIR 1926 Pat 545, AIR 1938 PC'65 and 1988 PLJR 686 it will appear that the entry in the record of rights cannot have much evidentiary value and cannot by itself be taken to be a proof of partition or separation of joint status, and they can only, at best be given some indication and the learned first ap-'pellate Court has rightly appreciated the principles in this regard and has given good reasons for reversing the finding of the trial Court in this regard. His further contention is that the execution of the mortgaged deed (Ext. B) by both the widows only indicates that there was cordial relationship between the two and there was no severance of joint status, otherwise they could have separately executed two separate registered mortgage deeds, each with regard to her share only.
15. In view of the contentions of the learned counsel for the parties it appears necessary to examine the exact legal effect of the entry in the records of rights (Ext. C) on the point as to whether there was severance of joint status among the parties, whose name had been recorded in the records of rights (Ext. C), namely Ramnath and Mostt. Ishara Kuer, the first of these cases cited during the hearing is reported in AIR 1920 PC 46 (Nageshar Baksh Singh v. Mt. Ganesha). This decision will show that after observing about presumption, which is to be raised in Hindu Law in favour of jointness, the Privy Council quoted with approval its earlier observation in another cases which was to the following effect:
".... .A definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family. Such a definition of shares standing alone cannot be regarded as sufficient evidence upon which to find contrary to the presumption in law as to jointure, that the family to which such definition referred had separated."
In this case the entries in relation to which the observation had been made was the entries contained in Wajib-ul-arz and in the khewat of the village and in the context of these entries in the village papers the aforesaid observation had been approved.
16. The next case on which reliance has been placed is reported in AIR 1925 F'C 93 (Midnapore Zamindari Co. Ltd. v. Kumar Naresh Narayan). In this case also the Privy Council observed that "entries in khewats and other similar village papers showing that the shares of co-owners have been specific, afford by themselves no proof that the owners were members of ajoint Mitakshara family or had separated", It was also observed that "payments jointly of Government Revenue, Taxes, Income-tax and such like payments do not by themselves indicate that the parties making such payments were joint or separate."
17. In AIR 1925 PC 132 (Mt. Phagwani Kunwar v. Mohan Singh), the Privy Council observed that revenue and village papers by themselves affords a very slight indication of an actual separation in a Hindu family and it is insufficient to prove contrary to the presumption of law that the family to which the entries refer had separated. The Privy Council further observed that the Collector's book is kept for purposes of revenue and not for purposes of title. The fact of a person's name being entered in the Collector's book as an occupant of land does not necessarily of itself establish that person's title or defeat the title of any other person".
18. In AIR 1926 Pat 545 (Raghunandan Prasad v. Mahabir Mahton) no proposition about the effect of any entry appears to have been laid down and it was only observed in the context, where a Panchayat, had been held and Panches had indicated, contrary to the entry in the survey record, that the contesting parties would get specific share in the case of partition, the Privy Council said that mere fact that the shares which co-parceners would be entitled lo, in the event of partition had been ascertained, does not necessarily amount to a partition of the property and any intention to separate.
19. In AIR 1938 PC 65 (Mt. Anurago Kuer v. Darshan Raut) the Privy Council observed that definition of shares may be proved, inter alia, by an entry in the Record of Rights showing the shares of each member of the family. Such an entry will be evidence of the severance of the joint status.
20. It may be noticed here that in this judgment specific mention had been made about the entry in the Record of Rights while previously noticed decisions would indicate that the entries related in some other village papers and not entry in the Record of Rights.
21. In AIR 1939 Pat 23 (Mt. Afti v. Mt. Sukni) a Division Bench of this Court has laid down that "where the entries in the Record of Rights showed that the names of two widows of two branches were recorded in respect of certain properties with a note that they had equal snares, it was sufficient proof of the separation of the two branches of the family as, the entries showed that the two widows were equally interested in the properties". In the instant case the entry in Ext. C has been made in the name of Ramnath son of Sital Pandey, (who was brother of Tulsi Pandey) and Most. Isara Kuer, widow of Tulsi Pandey indicating equal shares to them.
22. In AIR (32) 1945 PC 128 (Mt. Inder Kuer v. Mt. Pirthipal Ker) the Privy Council observed that the strength of presumption about jointness among the Hindu family varies in each case and the presumption of union is stronger in the case of brothers than in the case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker. The evidence in the case has to be reviewed in the light of this presumption. The Privy Council further observed that "an order made in mutation proceedings is, no doubt, not a judicial determination of the title of the parties but it has evidentiary value". In this case the effect of the order of mutation proceeding had been considered, and not the effect of any entry in the Record of Rights, on the question of jointness or separation of Hindu joint family.
23. The next case on which reliance has been placed during argument is reported in AIR (35) 1948 PC 210 (Durga Prasad v. Ghanshiam Das). The Privy Council, while considering the provision of Section 35 of the Evidence Act, relying on the decision of the Privy Council, reported in AIR 1920 PC 46 already referred to above, observed that the definition of shares in khewats or other Revenue papers can he regarded as only a very slight indication of title, for it is not the function of the officer who compiles such papers to decide questions of title of the parties.
24. In AIR 1960 Pat 548 (Smt. Savitri Devi v. Jiwan Chaudhary) a learned Single Judge of this Court held that mention of separate shares of different branches in the survey record of rights does not indicate at all that there was definition of shares in the sense that severance of joint status had taken place. Learned single Judge has in this decision referred to the earlier decisions of the Privy Council reported in AIR 1938 PC 65 and AIR 1945 PC 128. These decisions undoubtedly were considering the effect of entry in the Record of Rights as is the case in the instant case where the effect of entry as Ext. C is to be examined,
25. In AIR 1966 SC 405 (Bharat Singh v. Mst. Bharirathi) the question for consideration was the effect of mutation which had been made in favour of widow of one of the brothers and the Apex Court observed that "the mere fact that after the death of one Ram Narain, mutation entry was made in favour of three brothers and indicated the share of each to be one-third, by itself could be no evidence of the severance of the joint family which after the death of Ram Narain consisted of the three brothers who were minors". In 1988 PLJR 686 (Shri Ganesh Singh v. Widow of Shri Sibbaran Singh) while examining the provision of Section 35 of the Evidence Act, the learned single Judge referred to several of the cases noticed above in paragraph 12 of the judgment, and observed:
". . . .It is thus clear beyond doubt that a mere definition in revenue and village papers would not by itself, be conclusive evidence even that an actual partition was then intended. In order to establish separation, it must further be proved that such definition of shares was with a view to obtain partition. In absence of such evidence, mere definition of share by itself affords a very slight indication of actual separation and is insufficient to displace the presumption of joitness".
In Bharat Singh v. Mst. Bharirathi, AIR 1966 SC 405 also a similar view has been expressed but in context of mutation entry. The Supreme Court has said-
"There is a strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the joint Hindu family to establish it... .The mere fact that mutation entry after the death of Ram Narain was the share of each to be one-third, by itself can be no evidence of the severance of the joint family which after the death of Ram Narain, consisted of the three brothers who were minors. . . . ."
26. On a perusal of these decisions, the observations of which are relevant for consideration of the first point of substantial questions of law formulated in this case, it can, I think, be safely said that the entry in the record of rights (Ext. C) is definitely a piece of evidence, which can indicate severance of joint status. Whether it could be sufficient to prove severance of joint status to rebut the presumption which under the Hindu Law has to be raised in favour of jointness however is a crucial question. It can be noticed here that the strength of presumption, which has to be raised in favour of jointness, also varies according to the distance between the common founder of the family and, as was observed in AIR 1945 PC 128; "the presumption of union is stronger in the case of brothers than in the case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker". Obviously if there is weaker presumption, the evidence required for rebutting that presumption need not be of the same strength, which would be required for rebutting a strong presumption in favour of jointness.
27. A close perusal of the aforesaid decisions would disclose that several of the decisions related to entries in revenue and village papers other than in the Record of Rights. The entry in mutation paper or in khewat or any other village or revenue papers, in my opinion, cannot be given as much sanctity as an entry made in the Record of Rights. About the entry in the Record of Rights the law enjoins that such entry has to be presumed to be correct; and if any body wants to show that the entry is wrong, the burden of proof lies on the person alleging the entry to be wrong.
28. In this connection a mention may be made here that in preparation of record of rights several steps are taken with due publication and notice to the concerned persons of the village relating to which Record of Rights is being prepared and, at several stages, objection can be raised to any entry made in the process of preparation of Record of Rights. Before final publication of the Record of Rights, a draft publication is also done, as required by law, so that persons (raiyats) can look into the draft and file objection. if any, as contemplated by the provision of Section 103(A) of the Bihar Tenancy Act. So, in my opinion, an entry in the Record of Rights stands on different footing than other sort of entry in other village papers or mutation papers, and the law does not attach so much sanctity to them as to the entry in the Record of Rights, which has to be presumed to be correct under Section 103B of the Bihar Tenancy Act.
29. Now as regards to evidentiary value of an entry in the Record of Rights, a Division Bench of this Court seems to have observed in AIR 1939 Pat 23 that such an entry in the Record of Rights may be considered to be sufficient proof of separation of the two branches of the family. Several other decisions, as already noticed above, indicate that entry in the Record of Rights (and some of the decisions indicate that even the entries in other revenue and village papers) may afford slight indication of separation, though such entries may not by themselves establish partition and rebut the strong presumption, which has to be raised in favour of jointness of a Hindu family. In view of the decision of the Division Bench reported in AIR 1939 Pat 23, any contrary observation made in the single Bench decision of this Court reported in 1988 PUR 686 or AIR 1960 Pat 548 cannot be accepted. The earlier Privy Council decisions do not appear to have laid down law, in the context of entry in t he Record of Rights, and none has said that an entry in the Record of Rights cannot be taken to be the piece of evidence for indicating separation of joint status.
30. Now, in the instant case the entry in the Record of Rights (Ext. C) shows that the land of khata No. 340 (which contained the land of plots which is the subject-matter of the usufructuary mortgage) has been recorded in the name of "Ramnath Pandey and Most. Isara Kuer, Kaum (Caste) Bhumihar, Sakin-Deh, Tola-Bagauchhia Bahisse Bra bar". There is no dispute that Ramnath Pandey was the son of Sital Pandey and Sital Pandey and Tulsi Pandey were brothers, both being the son of Hari Pandey. Both had died prior to the final publication of the Record of Rights, -which according to the submission was done sometimes in the year 1917. The entry in the Record of Rights of Sital's son, Ramnath, who was nephew and Isara, whp was the aunt (widow of Sital's elder brother Tulsi) must in my opinion be given weight. Presumption of jointness in them naturally will not be as strong as when any brothers were involved. The mention of expression BAHISSE BRA-BAR definitely indicates separation of their joint status, otherwise their equal shares would not have been mentioned in the entry. The learned appellate Court seems to have taken the view that since' Tulsi Pandey had died long back prior to 1937 when his widow could not have been entitled to any share or interest in her husband's property, because a widow came to have some right to inherit only after the Woman's Right to Property Act, 1937 came into force, and so it could be presumed that the entire interest of Tulsi passed over to Sital by survivorship. But nothing should be assumed on conjecture, for if Tulsi would have been separate at the time of his death, there could be no question of survivorship. Moreover, even if his interest would have gone to Sital what happened thereafter till the death of Shital or what was agreed between Ramnath and Isara Kuer could not be ascertained. Sital might have decided to give half share to Isara, who was the widow of his elder brother, or after Sital's death Ramnath himself might have thought it proper to give half share to Isara, Ramnath's younger brother had died and Ramnath had also no other heir except his' mother, Maweshra. In such a situation instead of indulging in any congecture or assumption the entry in the Record of Rights (Ext. C) standing in the name of both Ramnath and Isara with a specific mention that both had equal shares should be taken to be the starling point, for considering the rights of both the branches over the land mentioned in the khata. The oral evidence in this regard is of little help because the witnesses were hardly competent to depose alboul what has happened long time back.
31. It was not only the fact that the names of Ramnath and Isra were mentioned in the Record of Rights, but their shares also were indicated as equal in the Record of Rights. This fact of mentioning share in the entry in my opinion has some probative value to show that there was already indication given that they had equal shares in the property mentioned in the khata, otherwise there could have been no occasion for specifying the share of the two, equally,
32. In view of the reasons indicated above, I am definitely of the opinion that the entry of the name of Most. Isra Kuer in Ext. C showing her equal share with Ramnath is a piece of evidence of severance of the joint status, and it is a piece of evidence, which has much probative value and in view of the decision reported in 1939 Pat 23 it could be considered decisions to be sufficient, though certainly not conclusive, for proving severance of joint status, when presumption about jointness between nephew (Ramnath) and aunt (Hara) cannot be considered to be strong.
33. Now coming to the second substantial question of decision it is obvious that the mortgaged deed (Ext. B) had been executed not only by one of the widows but by both the widows. The joining of Most. Isara Kuer also in execution of the mortgage deed suggests that Mst. Maweshra alone was not the absolute owner when the property was mortgaged, but Ishar Kuer had also some interest in it. When a document transferring any interest is executed by two persons, apparently it may be presumed that both the persons had interest for a person not interested in the property ordinarily cannot be expected to join as an executant of document relating to the property.
34. It may be noticed here that the pur pose for which this mortgaged deed (Ext. B) had been executed, as mentioned in the mortgaged deed, was the marriage of daughters. The finding of the learned trial Court as well as first appellate Court is that Darpania, whose marriage purpose (along with that of Ratani) was also indicated in the mortgage deed, was the daughter of Ishara Kuer, and with this circumstance the fact that the land had been mortgaged by both the widows further indicates that there was already severance of joint status among the two branches, and further adds to the probative value to the entry in the Record of Rights, which also indicated severance of joint status.
35. I may mention that in the decision reported in 1939 Pat 23 an identical piece of evidence was there because in that case also a mortgage bond (Ext, B) dated 12-6-1907 had been executed by one Lalsa and Mt. Afti in favour of the mortgagee. While considering the effect of the document the Division Bench observed that "this document unmistakably shows that Chattardhari husband of Afti, must have been separate from Lalsa, otherwise it is inconceivable that Lalsa would join Afti in executing a mortgage thereby admitting her title as his co-sharer in the mortgaged properties". The ratio of this decision appears to be applicable to the facts of the instant case.
36. The learned first appellate Court seems to have reversed the finding of the trial Court on this main issue by considering separately the effect of the documentary evidence as well as oral evidence. The trial Court has taken together the oral and documentary evidence in toto and has given a finding to the effect that there was severance of joint status. Learned appellate Court, in my opinion, has not made correct approach in this regard and certainly it has not properly considered the legal effect of entry in the Record of Rights (Ext. C) and of the fact of execution by both the widows of the mortgage deed. Once it is held that there was already severance of joint status, though there was no partition by metes and bounds between the two branches, and in my opinion, it should be held that there was severance of joint status in view of the entry in the Record of Rights and in view of the fact of the execution of the mortgage deed by both the widows for the marriage of their respective daughters, it will automatically follow that the respondents herein, who were plaintiffs, who had purchased the land from the successor-in-interest of only one of the two branches could acquire title only to the extent of half and they could redeem the property only to that extent. In this view of the legal position, I am of the considered opinion that the trial Court was right in decreeing the suit in part and the learned first appellate Court had erroneously set aside the judgment and decree of the trial Court and decreed the suit in entirety by mis-appreciating in the context of the facts and circumstances, the legal effect of the two documents Exts. B and C. The substantial questions of law, accordingly, stand answered.
37. In the result, therefore, I allow this appeal on contest and set aside the judgment and decree of the first appellate Court passed in Title Appeal No. 94/18 of 1975/77 reversing the judgment and decree passed by the trial Court in Title Suit No. 57 of 1970, and order that the judgment of the trial Court be re-stored and upheld.
38. In the facts and circumstances of the case, there will be no order as to cost.