JUDGMENT
Bahadur, J.
1. The appeal by defendants 1 and 2 arises out of a suit for partition of the half share of the two plaintiffs in the family properties, out of 101.96 acres of land appertaining to Revisional Survey Khewat Nos. 3, 4/1 and 4/2 of village Gondra within Police Station, Torpa in the district of Ranchi; the details of which have been described in the schedule appended to the plaint.
2. It will be useful to give below the genealogical table of the family of the parties:
MARTIN MUNDA (DEAD)
|
________________________ |__________________________
| |
Masidash (dead) Mansidh (dead)
_______________________________________ |
| | | | |
Junas (dead) Nabin(defdt s) Prabhudayal Nethenial |
| since dead his (died issueless) (died issuless| |
| heir on record |
|____________________________________ |
| | | |
Prabhu Sahay Hangra Masidas Boas (dead) |
(defdt 1) (defdt.2) |
__________________________|________
| |
Daood Masidas
| (went to Assam 20 25 yrs. ago,
________________________________|__________ since traceless, Presumed dead)
| | | = Mt. Bharos
Mathias (dead) Kallen (Plf. 2) Junas (Plf. 1)
3. Shortly stated, the plaintiffs case is that the lands in dispute at the time of cadastral survey appertained to C. S. Khewat No. 4/1 and khata No. 8 under khewat No. 3, which were jointly recorded in the names of Junas, Prabhudeyal, Nabin and Nethenial, sons of Masidash, on one side; and Mansidh, grandfather of the plaintiffs, on the other, in equal shares. At the time of revisional survey, the defendants, however, surreptitiously got the aforesaid khewat split up, with the result that C. S. Khewat No. 4/1 was split up into two khewats, namely, khewat No. 4/1, being recorded in the names of the defendants, and khewat No. 4/2, being recorded in the names of the plaintiffs. Similarly, khata No. 8 under khewat No. 3 was split up into four khatas, namely, khata No. 19, which was recorded jointly in the names of the parties in equal shares, khata Nos. 20 and 21 were recorded exclusively in the names of the defendants; whereas khata No. 32 was recorded only in the names of the plaintiffs. The plaintiffs allege that the lands in the said khewats and khatas were distributed unevenly.
4. The case of the plaintiffs further is that the lands in suit were never partitioned between the parties or their ancestors either before or after the revisional survey and that the parties have been cultivating them in accordance with their convenience.
5. The suit has been contested by the three defendants. The substance of the case of defendants 1 and 2, who are the real contestants, is that although Masidash and Mansidh had separated in mess amicably prior to the cadastral survey due to the increase in the number of the family members of Masidash, yet their lands remained joint. In 1909, a partition had been effected between the four sons of Masidash on one side and Mansidh on the other, wherein some lands had been given in excess to the sons of Masidash in view of the fact that some of the joint parti and tanr lands had been turned into korkar by the branch of Masidash, as also Masidash had received some land in Jethans (excess) according to the custom prevalent amongst Mundas to give jethans to an elder brother. In 1938, there had been another partition between them, i.e., defendants 1 and 2 on one side and Nabin Munda (defendant No. 3) on the other. Their further case is that the suit is not maintainable as Mt. Bharosi, widow of Masidash has not been made a party in the suit.
6. Defendant No. 3 has substantially supported the case of the plaintiffs and has denied the allegation of defendants 1 and 2 in respect of partition amongst themselves in 1938.
7. The learned Additional Subordinate Judge of Ranchi, who tried the suit, came to the following conclusions:
(1) There was no custom among the Mundah whereby an elder brother was given land in jethans on partition
(2) There had been no partition between the four sons of Masidash on one side and Mansidh on the other in 1909; nor did the branch of Masidash turn any parti or tanr land into Korkar, as alleged by the defendants.
(3) Masidash was dead and his widow Bharosi had left the village for good after the departure of her husband; and as such the suit was maintainable.
8. Appearing on behalf of the defendants-appellants, Mr. Ray Paras Nath has challenged all the findings and has contended that the trial Court has committed error in its approach to the case, as it appears to have lost sight of the fart that the parties are Indian Christians and, therefore, there is no presumption of point-ness of the family Learned counsel, therefore, submits that the parties would be governed by the Indian Succession Act. It will be convenient to dispose of this point at once. There is absolutely no material or evidence on the record to justify this submission of learned counsel. Both parties went to court in the suit as Mundas and in the evidence of each of the witnesses on the side of the plaintiffs as well as the defendants, they have been described to be Mundas. There is no evidence on the record to support the point raised by learned counsel. I must, therefore, proceed on the footing that the parties are governed by Munda customary law.
9. The following points, therefore, arise for consideration (i) Was there any partition between the father and uncle of these defendants on one side and Mansidh, grand-father of the plaintiffs, on the other? If so, can it be re-opened? (ii) Was there any custom among Mundas whereby an elder brother is given land in jethans on partition?
(iii) Did the Branch of Masidash make improvement in the family lands and make them Korkar?
(iv) Was Mt. Bharosi, wife of Masidas, a necessary party in the suit?
(v) Are the plaintiffs entitled to half interest in the suit land?
10. I may mention that in the plaint the plaintiffs did not include all the plots in khewat No. 3. Khata No. 19, as, it is submitted on their behalf and not challenged by the defendants that in between plot Nos. 435 and 469, eight plots, namely, plot Nos. 439, 440, 441, 449, 461, 462, 463 and 468, with a total area of 5.26 acres, had been inadvertently omitted. The total area is, however, correctly shown in the plaint, being 79.63 acres.
11. Points (i), (ii) and (iii): I take up these three points together because they are interconnected. It will be recalled that the case of defendants 1 and 2 is that a partition having been effected in 1909 between the four sons of Masidash on the one side and Mansidh on the other, the lands in suit cannot be re-partitioned. In order to examine the contentions raised on behalf of the defendants, I might state that although learned counsel has urged that the branch of Masidash had, prior to the said partition, made improvement in the family lands, and had made them korkar, yet he was not able to show us by any reliable evidence that this was the position.
It appears from the evidence of D. W. 4 (defendant No. 1) that after the cadastral survey and the partition between the four sons of Masidash on one side and Mansidh on the other some parti land had been converted into korkar by the defendants and their ancestors. He has not said any thing to show why some portion of the land in suit had been made korkar by the branch of Masidash before the alleged partition in 1909. But Polus Munda (D. W. 3) has stated in his cross-examination that “defendants and their father and uncles do not turn any tanr or parti land out of the lands which had been allotted to the branch of Masidash in the said partition, into Korkar- The defendants and their ancestors had turned some of the parti lands allotted to the branch of Masidash into korkar, after the partition among the 4 sons of Masidash and Mansidh had bean effected.”
12. The evidence to prove the custom amongst the Mundas, whereby an older brother gets some portion of the land in excess (jethans) is also not satisfactory. The defendants have examined four witnesses to support their case. namely, D. Ws. 1, 2, 3 and 4. We have looked into their evidence carefully and do not find anything in their evidence to indicate that such a custom was prevalent before 1909. There is also no indication in their evidence whereby an elder brother or his branch had been given jethans in a partition effected before the alleged partition in 1909. The evidence of D. Ws. 1, 2 and 3 is almost identical, in that, each one of them has tried to prove the customs of giving land to the elder brother in Jethans on partition, but none of them has produced any paper to corroborate him nor has any of them produced any witness to support his statement. The evidence of defendant No. 1, who has been examined as D. W. 4, is equally unsatisfactory in view of the fact that he does not know if any partition had been effected in their family prior to the partition between four sons of Masidash on one side and Mansidh on the other. He also does not know whether there has been any partition amongst the Mundas of village Gondra or other neighbouring village prior to the said partition in 1909 in their family.
13. The plaintiffs, on the other hand, have examined two witnesses, namely P Ws. 1 and 2, who have emphatically denied the existence of any custom amongst the Mundas, whereby an elder brother is given lands in jethans on partition.
14. Having perused and considered the evidence of the four witnesses on the side of the defendants and two witnesses on the side of the plaintiffs, I am unable to take any other view than that arrived at by the trial Court that the evidence adduced on behalf of the defendants to prove the alleged custom is not at all satisfactory or convincing and as such this part of their case must be rejected.
15. To establish the case of partition in the year 1909, the defendants have examined three witnesses, i.e., D. Ws. 1, 3 and 4. Learned counsel has placed their evidence and contended that their evidence should be accepted in proof of the partition. It appears from their evidence that none of them was present at the place where partition is alleged to have taken place. Their evidence is substantially the same, in that they had heard about the partition from their fathers. Nirban Munda (D. W. 1) was 60 years old at the time of giving his evidence in 1959 and he has stated that his father died 40 years ago. He had informed him six years before his death about the partition between Junas and his brothers on one side and Mansidh on the other. He has admitted that he himself was about 12 years of age. If his evidence is correct, then the partition must have taken place near about 1911 or 1913, but by no means in 1909, as alleged by the defendants.
It has been elicited from him in cross-examination that although he was 12 years of age, when his father had informed him about the aforesaid partition, yet his father had done so because he wanted him (the witness) also to get partition effected with his brothers in the same way as Junas and his brothers had done. It is curious that in spite of his father’s advice, D. W. 1 had not so far separated from his brothers. It is also curious that he remembers what his father told him nearly 40 years ago. In my opinion, his evidence cannot be accepted as he is not a truthful witness.
16. Polus Munda (D. W. 3) is of the same village. He has also stated in his cross-examination that five years before his father’s death, who had died 25 years ago, he informed him about the partition between the four sons of Masidash on one side and Mansidh on the other. He had received this information from his father in the year in which the partition took place. This would take us to the year 1929, which is not the case of the defendants. He has obviously come to oblige the defendants and has set up a fantastic case. His evidence must, therefore, be rejected.
17. Prabhu Sahay (D. W. 4), who is defendant No. 1, has given his age on the day of his deposition in 1959 as 55 years. It has been elicited in his cross-examination that his father had informed him 50 years ago about the alleged partition in question. He, however, stated that his uncle Prabhudayal had told him about the said partition 40 years ago and added that he was about 18 years, 20 years old when his father had given him information. It is impossible to accept the evidence of this man, which is full of confusion and falsehood.
18. There is yet another witness on behalf of the defendants, namely, Nabin (D. W. 5), who has stated that there had been never any partition between the four sons of Masidash on one side and Mansidh on the other. He appears to have been subjected on behalf of the defendants to a lengthy cross-examination which he stood very well. It is difficult to say why this witness would depose against his own interest and as such it is not possible to discard his evidence on this point.
19. Apart from oral evidence, learned counsel has taken us through some of the documents in order to support his contentions. The first document is the certified copy of the Tanaja (Ex. C) wherein it is mentioned that plot No. 677 is in possession of the second party, namely, Mansidh Munda, son of Martin Munda, who got it in his share on partition, which took place 20 years ago. Learned counsel has argued from this document that in 1930 Mansidh laid a claim, which was resisted by the defendants, on the ground that the partition had already taken place, and final publication in the survey of 1931 when the record was made, would support the defendants’ case about partition. Learned counsel has further argued that Ex. C would show khewat No. 4/1 was split up into two khewats, by which it became khewat No. 4/1 and khewat No. 4/2. Khewat No, 4/1 was in favour of the defendants whereas khewat No. 4/2 was in favour of the plaintiffs. Khewat No. 3 was split up into four, namely, khewat Nos. 20 and 21 in favour of the defendants exclusively, khewat No. 32 in favour of the plaintiffs’ grand-father exclusively whereas khewat No. 19 stood jointly in the names of the parties in which there were also many sikmidars.
20. Learned counsel strongly contended that Ex. 2, Khatian of mauza Gondra, which was published in 1906, and the Tanaja (Ex. C) of 1930, would unmistakably show that a partition had in fact been effected in 1909, as alleged by the defendants. In my opinion, the recitals in the Tanaja cannot be taken into consideration in proof of the partition, as alleged by the defendants. The only use of Ex. C, which can be made in this case, is that a claim had been made and certain decisions had been reached. Other matters are clearly inadmissible. The next document is Ex. C/1, which is a certified copy of another Tanaja of the year 1930, but it has no hearing in this case because this document does not show any partition. Exhibits D series arc certified copies of the revisional survey Khatian of khata Nos. 19, 20, 21, 32 and 47 to 50. Exhibit E is the certified copy of Bhumihari Khewat of village Gondra.
These document’s show that the lands were recorded separately in respect of the two branches of Martin Munda. In my opinion, however, it is not possible to hold from these documents that they prove the case of partition between the four sons of Masidash on one side and Mansidh on the other, particularly when I have not accepted the case of the defendants that the branch of Masidash had improved some parti and tanr lands into korkar before 1909 and also in view of the fact that I have held that there was no custom prevalent among Mundas to give jethans to an elder brother on partition. It has been rightly contended on behalf of the plaintiff-respondents that If the defendants’ case were true, then the lands appertaining to cadastral survey khewat No. 4/1 would also have been partitioned in equal shares in the partition, as alleged by the defendants in 1909. Bhumihari Khewat of mauza Gondra (Ex. E), however, gives another picture.
21. Mr. L. K. Choudhary on behalf of the plaintiff-respondents has shown us that 11.23 acres is the area of khewat No. 4/1, which is recorded in the names of the branch of Masidash; whereas 8.75 acres has been shown to be the area of khewat No. 4/2, recorded in the name of Mansidh Munda, son of Martin Munda. Mr. Choudhary has further submitted that if the lands of cadestral survey khata No. 8 under khewat No. 3 would have been divided into equal shares between the said two branches, both the branches would naturally have got equal areas of khata No. 8 under khewat No. 3, but it is not so This is clearly apparent from the area recorded in respect of revisional survey khata Nos. 20 and 21 as well as khata No. 32. Mr. Choudhary has shown us that the lands in possession of the defendants is 46.43 acres; whereas those in possession of the plaintiffs are only 28.24 acres, which is not only unequal, but also unjust. Learned counsel has further contended that this would only show that the lands were in possession of different parties according to their convenience of cultivation and by no means on account of any partition having taken place earlier.
22. On a consideration of the facts and circumstances of the case, I agree with the learned trial Judge and I hold that there had been no partition between the four sons of Masidash Munda on one side and Mansidh on the other in 1909. I further hold that the branch of Masidash had not turned any parti or tanr land into korkar, as alleged by the defendants, and that the defendants have failed to establish their case of any custom among Mundas, whereby an elder brother was given land in jethans on partition.
23. Point No, (iv):–This point relates to the maintainability of the suit for non-joinder of Mt. Bharosi, widow of Masidash. Mr. Ray Paras Nath has urged that the uncle of the plaintiffs, Masidash, had left the village about 25 or 30 years ago for Assam and after that no one, who was likely to have heard from him, had any information and as such it must be presumed that he was dead. His widow, Mt. Bharosi, should, therefore, have been added as a party in the suit and that being so, the suit is clearly not maintainable on account of non-joinder of Mt. Bharosi, both as necessary and proper party. Learned counsel has taken us through the evidence of P. Ws. 1 and 3 to support his contention. It appears from the evidence of Martin Pahan (P. W. 1) that Masidash had gone to Assam more than 20 years ago, four years after his marriage with Mt. Bharosi. The latter lives at her father’s place and she has got no issue. He cannot say whether Masidash is alive or dead.
The evidence of Junas Munda (D. W. 3) shows that the widow of Masidas does not reside with them as she had left the village. It has been elicited from him in his cross-examination that the father’s place of Mt. Bharosi is at Koingsar, at a distance of 8 to 10 miles from village Condra. He did not know where Mt. Bharosi was residing at present. He, however, admitted that he had met Mt. Bharosi about three years before filing the suit and had told her that he would file the suit for partition. He further admitted that Bharosi had come to his house a year after he had filed the suit. She had come to see them and had made enquiries about the progress of the suit. He, however, did not meet her after that nor had he been to her fathers place to meet her. It has, therefore, been contended that Mt. Bharosi, who is still alive and lives with her father and was taking interest in the suit by making enquiries about the progress was clearly a necessary and proper party in the suit, because, she would be entitled to a share representing her husband. I am unable to accept this submission as correct, because the evidence of D, W. 4 is quite clear on the point. He has admitted in his cross-examination that Mt. Bharosi had left Gondra soon after Masidash had left for Assam. We have looked in vain for any evidence on the record, which would show that she ever returned to the village to reside. On the other hand, the evidence is consistent that she left the village soon after her husband had left the village and had gone to Assam over 20 years ago.
The position, according to customary law of Mundas, is that the widow is not entitled to any share in the land in suit, but is only entitled to usufruct of her husband’s land. On the other hand, if she leaves the village of her husband for good and resides permanently with her father or brother, she forfeits that right. This view is supported by a passage in Sarat Chandra Roy’s book The Mundas and their Country’ at p. 432, the relevant portion of which is as follows:
“…..If the widow leaves her deceased husband’s village for good, and goes to reside permanently with her father or brother, she forfeits her right to enjoy the usufruct of her husband’s lands which then go to the nearest agnates……”
24. There is another difficulty in accepting the contention of learned counsel, in that, even assuming that Bharosi had come to the village of the parties after filing of the suit and had enquired about it, yet she was not interested, else she would have obviously taken steps to have been impleaded as a party in the suit. For the aforesaid reasons, I am in agreement with the findings arrived at by the learned trial Judge and hold that there is no substance in this point. The suit is clearly maintainable.
25. Point No. (v):–On a consideration of the oral and documentary evidence, referred to above, T have no hesitation in holding, in agreement with the finding arrived at by the learned trial Judge, that the plaintiffs are clearly entitled to half share in the disputed lands.
26. In the result, no ground for interference with the Judgment and the decree of the Court below has been made out. The appeal, therefore, fails and is dismissed with costs to plaintiff respondents.
Sahai, J.
27. I agree.