JUDGMENT
Gurusharan Sharma, J.
1. The plaintiff-appellant filed Title Suit No. 4 of 1975, against the defendants-respondents in the Court of 1st Subordinate Judge, Patna for partition of her half share in the suit house, bearing holding No. 1A, situate in Mohalla-Dariyapur Langartoli Chowraha in Patna Town.
2. According to the plaintiff, Lakhan Sao @ Ram Lakhan Sao owned and possessed the suit house. He died leaving behind a son, Nand Kishore Sao @ Nand Keshwar Sao, Defendant No. 1 and a daughter, Kamla Devi, the plaintiff.
3. In the Patna City Municipal Survey Khesra (Ext. 2) Sheet No. 69 finally published on 14.12.1983. Plot No. 1284 within Ward No. 8, over which the suit house stands situated, stood recorded in occupation of Most. Shambhu Nath @ Domni wife of jitu Sah with a house thereon. She was paying rent to the proprietor, Md. Jamil. She was none else but mother of Ram Lakhan Sao and after her death, her son inherited the same as her sole heir under Section 15 of the Hindu Succession Act, 1956.
4. Ram Lakhan Sao along with his son Nand Keshwar Sao, 13.1.1960 executed a registered deed of agreement (Exhibit 1) for sale, in respect of the said house, in favour of Laxmi Narayan Prasad, father of the defendants 6 and 7, wherein both of them admitted that Ram Lakhan Sao had a daughter, for whose marriage money was required to be raised. It is said that subsequently by a registered sale-deed dated 7.4.1960, transfer was made only of a part of the suit house, measuring 25′ 1″ cast-west x 35″ north sought on its eastern and in favour of the said Laxmi Narayan Prasad.
5. Admittedly Ram Lakhan Sao died some time in the year 1962. The plaintiff being her daughter filed the present suit on 7.1.1975, for partition of the house against her brother, Nand Keshwar Sao, as sole defendant.
6. However, Nand Keshwar Sao transferred the remaining part of the suit house, which was subject matter of the partition suit to different persons. By a registered sale-deed dated 1.6.1973 (Ext. A-3) he sold 8′ 8″ x 37′ 1″ area contiguous to the area sold on 13.1.1960 to the said Lakshmi Narayan Prasad, father of the defendants 6 and 7. He executed another sale-deed on 23.12.1974 (Ext. A-2) and transferred 11′ x 13′ area of the said house in its western most part in favour of the Defendant No. 5. However, the plaintiff was not aware of the aforesaid transfers and so the same were not mentioned in the plaint and those purchasers were also not made parties to the suit.
7. During pendency of the suit, Nand Keshwar Sao again executed three registered sale-deeds in respect of the remaining part of the suit house on 9.1.1975, 5.4.1975 and 6.5.1975 (Exts. A-1/3, A-1/2, and A-1 respectively), all in favour of defendants 2 to 4. All the purchasers were, however, added as Defendants 2 to 7 to the suit.
8. Nand Keshwar Sao neither appeared nor filed written statement nor contested the suit.
9. The purchasers, Defendant Nos. 2 to 4, Defendant No. 5 and Defendant Nos. 6 & 7 filed separate written statements. However, the common case of the three sets of contesting defendants was that the plaintiff, Kamla Devi was not the daughter of Ram Lakhan Sao, rather she was a stranger to his family and Nand Keshwar Sao was his only issue.
10. All of them claimed their title and possession over the portion of the suit house, they had purchased. Defendant Nos. 2 to 4 claimed that they were already in occupation of a portion of the house as tenants from before. Defendant No. 5 claimed to have let out the portion of the suit house purchased by him to a tenant.
11. The trial Court held that the plaintiff failed to established by cogent evidence that she was daughter of Ram Lakhan Sao. It was observed that though it seemed to be more probable that she was daughter of Ram Lakhan Sao on the basis of Exhibit-1 as also for the reason that close relatives of Ram Lakhan also deposed accordingly, but sufficient proof, according to the trial Court was wanting. It was further held that the contesting defendants also failed to establish that one Shanti was daughter of Ram Lakhan Sao and Kamla Devi was daughter of Jhameli Sao. It was further observed that in case the plaintiff, Kamla Devi was daughter of late Ram Lakhan Sao, she may be entitled to 1/4th share in the remaining part of the suit house, excluding the area already transferred by Ram Lakhan, during his lifetime.
12. The trial Court, accordingly, dismissed the suit by the impugned judgment and decree dated 17.12.1977.
13. After hearing the parties at length and on perusal of the pleadings and evidence, both oral and documentary, on record, 1 find that the defendants in their pleadings simply denied Kamla Devi to be the daughter of late Ram Lakhan Sao. According to them, Ram Lakhan Sao had only one issue that is a son, namely, Nand Keshwar Sao. In course of trial of the suit they developed their case that in fact the plaintiff, Kamla Devi was daughter of Jhameli Sao, who was the Sarhu of Ram Lakhan Sao and his daughter referred to in Exhibit 1 was named Shanti, who was dead.
14. Since Ram Lakhan Sao himself admitted in the year 1960 (Ext. 1) that he had a marriageable daughter and as such the defendant’s denial of the fact that he had no daughter was not at all tenable, To me it appears that since the defendants were not aware of the said admission, they came out with a case that Ram Lakhan Sao had no daughter and as soon as they came to know about it they developed a new case that Ram Lakhan had a daughter, Shanti, who was already dead, but I find that they miserably failed to prove it.
15. Further absence of the Defendant No. 1 Nand Keshwar Sao from the scene proved that he had no courage to come to Court and deny the plaintiff to be his full sister.
16. 1 support of the plaintiff’s case, the P,Ws. 2 to 7 who were the tenant-cum-hajam, Dhobi, Halwai, relations like Sarhus of late Ram Lakhan Sao and his sister in law, Mausi of the plaintiff and neighbour, who had special means of knowledge about the relationship of the plaintiff with Ram Lakhan Sao also came and deposed that she was daughter of late Ram Lakhan Sao. I have perused their evidence and found admissible under Section 50 of the Evidence Act.
17. In the aforesaid premises of facts, I set aside part of the impugned judgment, whereby the trial Court held the plaintiff-appellant herein not to be the daughter of late Ram Lakhan Sao. I hold that the plaintiff-appellant succeeded in establishing herself, on the basis of evidence on record, to be the daughter of late Lakhan Sao @ Ram Lakhan Sao.
18. Admittedly the suit house was possessed by the mother of Ram Lakhan Sao and after her death, he alone inherited it, under Section 15 of the Hindu Succession Act. It was, therefore, not an ancestral property.
19. However, Mr. Shiv Dayal Singh, counsel for the Respondents No. 6 and 7 submitted that recitals of Ext. 1 proves that Ram Lakhan Sao had thrown the suit house inherited from his mother into the common stock and the property assumed the character of joint family property and as such the finding of the trial Court that the plaintiff was entitled to only 1/4th share therein, was valid and justified.
20. The onus of proving blending was heavy on the Defendants No. 6 and 7, who claimed that Ram Lakhan Sao acted in such a manner as to the reasonable inference that he did convert the suit property into joint family property. There was no presumption in favour of general blending and there must be proof of it. The intention to abandon his exclusive title by Ram Lakhan Sao must be manifested clearly by his acts, which were inconsistent with a desire to keep it at his absolute disposal. A single instance, in my opinion, will not prove that Ram Lakhan Sao had thrown his acquisition into common stock. The recitals in Ext. 1 in this regard is only a piece of evidence, which has to be taken into account in considering the question and which has to be assessed along with other factors.
21. Nothing has been shown to me either in the pleading or in evidence that a question of blending of the suit house into common stock by Ram Lakhan Sao was even raised in the suit.
22. I, therefore, do not find any thing on the records to accept the submission of Mr. Singh. I, therefore, hold that titled to the suit house resided in the father, Ram Lakhan Sao as his self acquired property and his son, Nand Keshwar Sao could not claim a share therein either on the ground that it was ancestral property in which he had acquired a right by birth or on the basis of its being treated as joint family property by reason of his father having given up his exclusive right over it.
23. Accordingly, I hold that after death of Ram Lakhan Sao, both his son and daughter, namely the plaintiff and Defendant No. 1 got half and half share therein. The plaintiff-appellant is, therefore, entitled to half share in the suit house, described in Schedule 1 to the plaint. As such the part of the impugned Judgment, wherein the trial Court observed that in case the plaintiff was daughter of late Ram Lakhan Sao, she was entitled to only 1/4th share in the suit house is also set aside.
24. In the result, this appeal is allowed, but without costs