Patna High Court
Ram Lakhan Singh & Ors vs Radhika Devi & Ors on 13 March, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.176 of 2006
Against the judgment and decree dated 19.9.2006 passed by Sri
Chandra Shekhar Pradhan, Sub Judge-6th, Patna in Title Partition
Suit No. 287 of 2003.
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Ram Lakhan Singh & Ors
.... .... Appellants
Versus
Radhika Devi & Ors
.... .... Respondents
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Appearance :
For the Appellant/s : Mr. Kamal Nayan Chaubey, Sr. Advocate
Mr. Sarvan Kumar, Advocate with him.
For the Respondent/s :
Mr. Shiv Nandan Rai, Sr. Advocate
Mr. Gopal Sharan, Advocate
Mr. Rewati Kant Raman, Advocate with him.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 13-03-2012
Mungeshwar 1. The defendant Nos.1 and 8 to 14 have filed this first appeal
Sahoo, J.
against the impugned judgment and decree dated 19.9.2006 passed by Sri Chandra Shekhar Pradhan, the learned Subordinate Judge-6th, Patna in Title Partition Suit No. 287 of 2003 decreeing the plaintiff respondent No.1's title partition suit to the extent of half share.
2. The original plaintiff Radhika Devi, respondent No.1 filed the aforesaid Title Partition Suit No. 287 of 2003 claiming partition of half share in the suit property mentioned in Schedule 2 of the plaint.
Patna High Court FA No.176 of 2006 dt.13-03-2012 2
3. The plaintiff's case in short is that Sher Singh had two sons namely Salikh Singh and Sajeevan Singh. The second son Sajeevan Singh died issueless. Salikh Singh had two daughters namely, Ram Sakhi and Radhika (plaintiff). Ram Sakhi was married with Ram Lakhan Singh, defendant No.1. Radhika, the plaintiff was married with Parmanand Singh who died 6 month after marriage and, therefore, the Radhika became widow. Ram Lakhan Singh had two sons i.e. Suresh Prasad Singh and Tribhuan Prasad Singh. The defendant Nos. 3 to 6 are the sons of Suresh Prasad Singh and defendant No.7 is minor daughter of defendant No.3. The defendant Nos. 8 to 14 represent the branch of Tribhuan Prasad Singh. It is stated that Salikh Singh died leaving behind his two daughters Ram Sakhi and Radhika Devi, who inherited his entire property and came in possession thereof. After death of Salikh Singh and Pramanand Singh, the defendant No.1 husband of Ram Sakhi was looking after the entire property. The defendant No.1 is the Bahnoi of the plaintiff, therefore, the plaintiff had full faith on him. Out of the joint property income the defendant No.1 acquired some property also but the plaintiffs do not know in whose name the properties were acquired but the joint family is in possession of property. After death of one of the son of the defendant No.1 problems started in the family because the defendant No.1 started giving less usufruct to the plaintiff. The Patna High Court FA No.176 of 2006 dt.13-03-2012 3 plaintiff, therefore, demanded partition of her half share but the defendant No.1 refused. Hence the partition suit was filed.
4. The defendant Nos. 2 to 7 who represents the branch of Suresh Prasad Singh i.e. first son of Ram Lakhan Singh (defendant No.1) filed supporting written statement. According to them they have no objection if half share is given to Radhika Devi daughter of Salik Singh but they claimed that their 1/4th share may also be partitioned.
5. The defendant No.1 Ram Lakhan Singh i.e. husband of Ram Sakhi and defendant Nos. 8 to 14 i.e. the widow, sons and daughters of Tribhuan Prasad Singh second son of Ram Lakhan Singh filed contesting written statement. Their case in short is that Radhika Devi who was daughter of Salikh Singh pre-deceased Salikh Singh her father. According to them Salikh Singh died in 1960 and prior to that Radhika Devi had died. The present Radhika Devi is not the daughter of Salikh Singh rather she is a fictitious lady brought by Suresh Prasad Singh, defendant No.2 from his Sasural. Prior to his death Salikh Singh had given 1 acre 87 decimal of land in plot No. 1260 and 1176 of Khata No. 379 on 4.6.1951 to Radhika Devi. Because she died prior to Salikh Singh the name of Radhika Devi was not recorded with respect to the lands given her for maintenance. The further case is that Salikh Singh had given 2.71 acres of land by Patna High Court FA No.176 of 2006 dt.13-03-2012 4 gift in 1947 to Ram Sakhi. After death of Salikh Singh all the properties were partitioned between Ram Sakhi, her husband and sons by family arrangement and memorandum was prepared on 31.5.1992. According to the said partition the sons of Ram Sakhi namely Suresh Singh and Tribhuan Singh came in possession. The further case of the defendant is that the defendant No.1 was a businessman and out of his own hard labour he had purchased a truck and out of the income from it had purchased some land in his name which are his self acquired property.
6. On the basis of the aforesaid pleadings of the parties as many as 11 issues were framed by the court below.
7. Issue No.1 to 6 relates to maintainability of the suit, cause of action, waiver, acquiescence, limitation and valuation, court fee and non-joinder and mis-joinder of parties. Issue No.7 is whether Salikh Singh died in the year 1960 and Radhika Devi pre-deceased him or not and after her death the lands given for maintenance came in possession of Ram Sakhi or not. The main issue is issue No.8 which is as to whether Radhika Devi, the plaintiff is daughter of Salikh Singh or not. The other issues are relating to the maintenance of land given to Radhika Devi by her father and about the landed property of her Sasural.
8. After trial the learned court below came to the conclusion Patna High Court FA No.176 of 2006 dt.13-03-2012 5 that the present plaintiff Radhika is the daughter of Salikh Singh and she has half share in the suit property and in addition to the properties given to her by her father for maintenance. The trial Court also recorded a finding that there is unity of title and possession between the parties. The learned court below also found that regarding self acquiescence no evidence has been produced by the defendants nor any document was produced to show that which property was his self acquired property as claimed by defendant No.1. The learned court below also found that the alleged partition in the year 1992 is meaningless because Radhika Devi was not given any share in the property. On the basis of these findings, the learned court below came to the conclusion that the plaintiff Radhika Devi is entitled for half share and in the remaining half share the heirs of Ram Sakhi i.e. defendant No.1, defendant Nos. 2 to 7, and defendant Nos. 8 to 14 have got equal share. Since defendant Nos. 2 to 7 have claimed their separate share the court below held that they have got 1/6th share out of remaining half share and then decreed the suit.
9. It may be mentioned here that during the pendency of the appeal the plaintiff respondent No.1 Radhika Devi died issueless and, therefore, her name has been expunged.
10. The learned Senior counsel Mr. Kamal Nayan Chaubey submitted that since the original plaintiff has died now the question as Patna High Court FA No.176 of 2006 dt.13-03-2012 6 to whether she was the daughter of Salikh Singh or not is only academic question remained to be decided in this appeal because on her death the property will devolve on the heirs of Ram Sahki i.e. the defendant Nos.1 to 14. The learned counsel further submitted that the learned court below has not decided about the self acquisition made by defendant No.1 and wrongly recorded a finding that Radhika Devi is the daughter of Salikh Singh. According to the learned counsel the alleged partition of the year 1992 was held to be not effective because Radhika Devi was not given any share but in view of the fact that Radhika Devi is now dead, the family arrangement i.e. partition of the year 1992 will come into play and it will be binding on the parties. The learned counsel further submitted that the parties have acted on the family arrangement and some of them have also sold the suit properties. According to the learned counsel the family arrangement should be given respect to and the parties cannot walk- out of the same. In support of his contention he relied upon AIR 2003 SC 3669, AIR 2003 SC 579 and AIR 1976 SC 807.
11. On the other hand, the learned senior counsel Mr. Shiv Nandan Rai submitted that there is no evidence adduced by the appellants regarding self acquisition and moreover admittedly, they were in possession of the entire suit property. From the income of the entire suit property i.e. the joint family the defendant No.1 had Patna High Court FA No.176 of 2006 dt.13-03-2012 7 acquired the property. It was the burden on the defendant No.1 to have adduced cogent evidence as to which property has been purchased by him in his name and he should have disclosed the source of income, but no evidence has been adduced. In such circumstances the finding of the learned court below cannot be interfered with. So far the alleged partition of the year 1992 is concerned the learned counsel submitted that admittedly that partition took place during the life time of Radhika Devi, the plaintiff, therefore, the partition is in-effective as no share was allotted to Radhika Devi. Radhika Devi was entitled for half share. Her half share can be partitioned only after her death. Therefore, when Radhika Devi died during the pendency of the appeal the partition of the year 1992 cannot be given effect to now. According to the learned counsel so far the property of the Radhika Devi is concerned that cannot be partitioned in the present case because the defendant appellants never claimed partition of her property. Radhika Devi has executed will in favour of the respondent on 31.12.2007 and the respondents have filed the copy of the will in this appeal. On the basis of these facts, the learned counsel submitted that the appeal may be dismissed.
12. The interlocutory application being I.A. No. 101 of 2012 has been field by the respondents under Order 41 Rule 27 of the Code Patna High Court FA No.176 of 2006 dt.13-03-2012 8 of Civil Procedure on 4.1.2012 i.e. during the course of hearing of the appeal. I have heard the parties on this interlocutory application also. The respondents have prayed that the registered sale deed dated 7.7.1952 and 8.7.1952 may be marked as an exhibit in the case on behalf of the respondents. Regarding this application the learned counsel for the respondents submitted that for the ends of justice it is necessary that the respondents may be permitted to adduce additional evidence and because the documents are 30 years old may be marked as an exhibit. On the contrary, the learned counsel Mr. Chaubey appearing on behalf of the appellants objected to the application and submitted that at this stage the respondents cannot be permitted to adduce additional evidence, the said documents were never filed before the court below nor a statement has been made that even after due diligence the respondents had no knowledge about the said documents. None of the clauses as provided under Order 41 Rule 27 is attracted. Only because the documents are 30 years old automatically that cannot be adduced in evidence at appellate stage unless the conditions provided under Order 41 Rule 27 is attracted. The documents cannot also be allowed to be adduced as additional evidence at appellate stage to pronounce judgment in a particular manner. It is not the case of the respondents that without the said documents no effective judgment could be passed by the appellate Patna High Court FA No.176 of 2006 dt.13-03-2012 9 court. In support of his contention the learned counsel relied upon AIR 1965 SC 1008.
13. So far this interlocutory application is concerned from perusal of it it appears to me that only case has been made by the respondents that the documents are 30 years old. It is not the case that unless the documents are admitted in evidence no judgment can be passed satisfactorily or that the respondents had no knowledge about these documents during the pendency of the suit or that they were not possessing the same. During course of hearing of the appeal, I found that overwhelming evidence has already been filed on behalf of both the parties. In absence of these documents sought to be adduced as additional evidence effective judgment can be passed. In my opinion, therefore, only because documents are 30 years old any party cannot be permitted to adduce additional evidence unless it is necessary for the ends of justice. It is for the court to find out that for doing substantial justice between the parties additional evidence is necessary and in absence of that no satisfactory judgment can be passed. Here in the present case it is not the case. The Hon'ble Apex Court in AIR 1965 SC 1008 has held that the documents cannot be allowed to be adduced as additional evidence for passing judgment in a particular manner. I therefore, find no merit in this interlocutory application and, therefore, it is rejected.
Patna High Court FA No.176 of 2006 dt.13-03-2012 10
14. It appears that the parties have field I.A. No. 7415 of 2009 (by defendant No.4) and I.A. No. 4876 of 2011 (by the appellants). I.A. No. 2419 has been field by the appellant for initiating contempt proceeding against the respondent No.1. It may be mentioned here that after the death of respondent No.1 Radhika Devi this application has become now infructuous and it has already been rejected on 21.12.2011. I.A. No. 7415 of 2009 has been filed by the respondent No.4 praying for permission to give the lands detailed in paragraph 8 of the application to developer for developing the land and likewise I.A. No. 4876 of 2011 has been filed by the appellants seeking permission to give the suit land to developer for developing the land. By terms of order dated 21.12.2011 it was directed that these interlocutory applications shall be heard along with the appeal.
15. In view of the above rival contentions of the parties stated above, the points arise for consideration in this appeal are :
(1) - As to whether Radhika Devi (the original plaintiff) was the daughter of Salikh Singh or not and whether the alleged partition of the year 1992 alleged by the appellants is binding on the parties ?
(2) - Whether the defendant No.1 has acquired some properties out of his own income or of the suit properties are joint family property ?
Patna High Court FA No.176 of 2006 dt.13-03-2012 11
16. Point No. (1) :- According to the plaintiff Salikh Singh had two daughters Ram Sakhi and herself Radhika Devi. Salikh Singh died leaving behind her two daughters who came in possession of his entire property jointly. All the defendants are the branch of Ram Sakhi Devi, the first daughter. Out of them the heirs of first son of Ram Sakhi are admitting the case of the plaintiff who are the respondents in this first appeal. The husband of Ram Sakhi i.e. the defendant No.1 and heirs of second son Tribhuan are only contesting the question regarding the parentage of original plaintiff. Here it may be mentioned that the defendants Nos. 2 to 7 who are the heirs of Rsm Sakhi in equal degree to that of defendant No.1 and defendant No.8 to 14 admitted the case of plaintiff i.e. their admission is against their interest and, therefore, it is more important. According to the defendant Nos.1 and 8 to 14 who are the appellants in this appeal, original plaintiff Radhika Devi is not the daughter of Salikh Singh. The daughter of Salikh Singh namely Radhika Devi had pre-deceased her father Salikh Singh. Salikh Singh died in the year 1960 and the property which was given in Khoris to Radhika Devi was reverted back to Salikh Singh and after death of Salikh Singh it came to the branch of Ram Sakhi. In support of their respective cases the parties have adduced evidences oral as well as documentary.
17. PW 1 Arun Kumar has stated that plaintiff Radhika Devi is Patna High Court FA No.176 of 2006 dt.13-03-2012 12 daughter of late Salikh Singh who was married with Parmanand Singh son of Doman Singh. The house of this witness is just adjacent to the house of Radhika Devi, the plaintiff. It may be mentioned here that it is the case of the contesting defendant appellant also that Radhika Devi daughter of Salikh Singh was married to Pamanand Singh but according to them Radkhika Devi died prior to 1960. This witness PW 1 has clearly stated that the wife of Parmanand Singh namely Radhika Devi is alive.
18. PW 2 Mahesh Singh has stated that he resides in the same house where Radhika Devi was originally residing. This witness is son of Mahendra Singh and Mahendra Singh is the brother of Doman Singh. This Doman Singh is father in law of Radhika Devi i.e. father of Parmanand Singh. PW 3 is the own brother of defendant No.1 Ram Lakhan Singh. He has fully supported the case of plaintiff and stated that Ram Sakhi was married to his brother Ram Lakhan Singh who was full sister of Radhika Devi daughter of late Salikh Singh. Radhika Devi was married with his chachera Bhatija Parmanand Singh.
19. PW 4 Ram Briksh Ram, PW 5 Lal Prasad Singh, PW 6 Jagdish Thakur, PW 7 Ravindra Prasad Singh, PW 8 Shivraj Sharma, PW 9 Kedar Singh, PW 10 Deepak Kumar, PW 11 Ajay Kumar all have supported the case of the plaintiff that she is the daughter of late Patna High Court FA No.176 of 2006 dt.13-03-2012 13 Salikh Singh and she was married with Parmanad Singh. They have also stated that wife of Parmanad Singh is alive i.e. Radhika Devi. PW 12 is Radhika Devi herself. These are the oral evidences adduced on behalf of the plaintiff. The brother of the defendant no.1 himself has also supported the case of plaintiff in his evidence. From perusal of the evidence of PW 12 it appears that no suggestion has even been given to Radhika Devi regarding as to whose daughter she is.
20. Exhibit 1 series i.e. exhibit 1, 1/A, 1/B are voter list of the year 1988, 2003 and 1995 from which it appears that Radhika Devi is one of the member of the family of Parmanand Singh.
21. The supported defendant respondents have also produced Ext. (A) the election identity card of Radhika Devi, caste certificate of Radhika devi dated 23.1.2004 and Ext. C the residential certificate dated 21.1.2004. These exhibits B, C have been proved by Mukhiya Shiveraj Sharma who has deposed that after inquiry the certificate has been granted. He has also stated that Radhika Devi, the plaintiff widow of late Parmanand Singh who is still alive. Ext D series have been filed which are show cause rejoinder to the injunction application etc. wherein the appellants have admitted indirectly that plaintiff is the daughter of Salikh Singh.
22. Now let us see the evidence of the contesting defendants appellants on this point. The witnesses examined on the behalf of the Patna High Court FA No.176 of 2006 dt.13-03-2012 14 defendants have only given a negative evidence to the effect that Radhika Devi is not the daughter of Salikh Singh and the daughter of Salikh Ram namely Radhika Devi had pre-deceased her father. Except this no reliable evidence has been placed on record by the appellant to show that wherefrom this Radhika came. From the discussion of the oral evidences and the documentary evidences it appears that the plaintiff Radhika Devi has been able to prove her case that she was the daughter of Salikh Singh. The overwhelming evidences adduced by the plaintiffs supported by the documentary evidences i.e. the voter list clearly proves the fact that the daughter of Salikh Singh Radhika Devi never pre-deceased her father and she has filed this suit for partition. Except the denial by the defendants appellants there is nothing on record to disprove this fact or belies this fact. I therefore, find that the original plaintiff Radhika Devi, the respondent No.1 in this appeal was the daughter of Salikh Singh.
23. The learned counsel for the appellants submitted that since she has died the question becomes now academic is concerned, no doubt this question is academic but it will effect the rights of the parties. Automatically it cannot be held that after her death the property will go to the parties equally i.e. half to the appellant and half to the respondents. In the present case, the will has been produced by the respondents. Therefore, it is not the case that she Patna High Court FA No.176 of 2006 dt.13-03-2012 15 died intestate. It appears that the will has been executed by her prior to her death. Therefore, the property of original plaintiff Radhika Devi will devolve on the person in favour of whom the will has been executed depending on the genuineness or otherwise of the will and if it is probated. So far this question is concerned that cannot be gone into in this first appeal.
24. The learned counsel for the appellants submitted that the parties have partitioned by family arrangement in the year 1992 i.e. Ram Sakhi had partitioned the property between her husband and sons i.e. the appellants and respondents in the year 1992 and therefore, there is no question of fresh partition arises. The learned counsel relied upon the decisions referred to earlier. So far the proposition laid down by the Apex Court relied upon by the appellants is concerned there is no dispute that the family arrangement should be respected and should not be lightly interfered with. But in the present case, when the family arrangement was made in the year 1992 Radhika Devi was alive. We have seen above that Radhika Devi is the daughter of Salikh Singh and therefore, she had half share in the suit property in addition to the property given to her by her father for her Khoris. Even if any partition has been made regarding the property of Radhika Devi that will not affect the right, title and interest of Radkhia Devi, whether it was acted upon or not Patna High Court FA No.176 of 2006 dt.13-03-2012 16 acted upon. On the date of institution of the suit the question to be decided is whether Radhika Devi has any share in the property. We have found that Radhika Devi had half share now therefore, the said share of Radhika Devi will devolve according to inheritance or according to the testament as the case may be. On the basis of the alleged partition it cannot be said that her property will go half and half to the heirs of Ram Sakhi. The respondents are claiming that plaintiff has executed will in their favour. The same shall be decided in appropriate proceeding and not in this case.
25. Point No. (2):- The learned counsel for the appellants submitted that some of the properties have been acquired by the defendant No.1 out of his own income. So far this submission is concerned except pleading no reliable evidence has been produced by the defendants. Which is the property purchased by him in his own name and which is the title document. From the case of the parties it appears that the appellants have admitted the fact that they were in possession of the property of Salikh Singh. The subject matter of the suit is substantial agricultural land. In such circumstances, unless it is shown by the defendant No.1 that which property has been purchased by him out of his own income without the aid of the joint family property income it will be presumed to be the joint family property. The defendant No.1 has failed to adduce any such evidence regarding Patna High Court FA No.176 of 2006 dt.13-03-2012 17 his self income. I therefore, find that the learned court below has rightly found that there is no evidence to rely on the case of self acquisition made by the defendant No.1. Thus, the finding of the court below is hereby confirmed.
26. In view of the above facts and findings now it becomes clear that the property of Radhika Devi, the original plaintiff i.e. half share will devolve on the person in favour of whom will has been executed if it is found to be genuine and if it is not found to be genuine then it will be inherited by heirs of Ram Sahki equally. The interlocutory applications filed by the appellants and the respondents therefore, are disposed of accordingly. The appellants have got the share in the property as held by the trial court.
27. In the result, I find no merit in this first appeal and accordingly, it is dismissed. In the facts and circumstances of the case, there shall be no orders as to costs.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 13th March, 2012 S.S./ A.F.R.