FIRST APPEAL No. 174 OF 2001
Against the judgment and preliminary decree dated 25.01.2001
passed by Sri Lakshman Ram, Subordinate Judge 4th, Purnea in Title
Suit No.192 of 1997.
SMT. SUDHA DEVI .......... Plaintiff-Appellant
Versus
MOSTT. CHINTAMANI & ORS. ......... Defendants-Respondents
********
For the Appellant : Mr. Rabindra Nath Kanth, Advocate
For the Respondent : Mr. Sidheswari Prasad Singh, Sr. Advocate
Mr. Dhaneshwar Prasad Gupta, Advocate
Dated : 28th day of April, 2011
PRESENT
THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
JUDGMENT
Mungeshwar The plaintiff has filed this First Appeal against the
Sahoo, J.
impugned judgment and decree dated 25.01.2001 passed by Sri
Lakshman Ram, the learned Subordinate Judge 4th, Purnea in title suit
no.192 of 1997 dismissing the plaintiff-appellant’s partition suit.
(2) The plaintiff-appellant, Smt. Sudha Devi filed the aforesaid
partition suit being title suit no.192 of 1997 claiming 1/6th share in
Schedule-A land of the plaint. She claimed 1/6th share alleging that
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Sitaram Bishwash had three sons and three daughters namely Siv
Prasad Bishwash, the defendant no.1, Jagdish Prasad Bishwash who
died in 1993 leaving behind heirs defendant nos.6 to 10, Hari Prasad
Bishwash who died in 1986 leaving behind heirs defendant
nos.2,3,4,5,12 and 13, Sudha Devi, the plaintiff, Urmila Devi who died
in 1982 leaving behind her heirs defendant nos. 14 to 16 and Kamla
Devi, defendant no.17. Sitaram Bishwash died on 22.12.1974. His
widow, Fulkumari Devi died much before the death of Sitaram
Bishwash. All the sons of late Sitaram Bishwash separated themselves
in mess and worship only in the year 1955. The suit land is still joint
and the parties have got unity of title and possession. The plaintiff used
to come seasonally and receive her proportionate crops. Defendant
no.1 is the karta of the joint Hindu family. For last 5 years, the plaintiff
is not being given her proportionate share. Some lands situate at Mauja
Siyarkham comprised within khata nos.44 to 47, area 28.28 acres. Out
of the joint family fund, three brothers have purchased the lands of
Mauja Kohila comprised within khata no.42 measuring 16.55 acres
which is also joint family property and the parties are in joint
possession. Out of the joint family fund, late Hari Prasad Bishwash
purchased land of khata nos.62 and 90 in Mauja Balwa which is also
joint family property. In the month of December, 1996, the plaintiff
was given only 30 monds of crops instead of 150 monds which
compelled the plaintiff to demand for partition. The defendants refused
to partition the suit property. The plaintiff further alleged that her
father, Sitaram Bishwash owed Rs.20,000 to the plaintiff for last 20
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years and in lieu of the said amount, her father had donated a small
chunk of land at Nayatola, Purnea for residential purpose through a
punchnama. This land is not the suit property which belongs to the
plaintiff exclusively. On these grounds, the plaintiff prayed for 1/6th
share in the suit property.
(3) On being noticed, the defendants appeared and filed a joint
written statement. Besides taking various legal pleas, their main
defence is that Jashodhar Bishwash, husband of Urmila Devi and
Poonam Devi, daughter of late Hari Prasad Bishwash have not been
made party in the suit and, therefore, the suit is bad for defect of
parties. They admitted that because of dispute in the family, Hari
Prasad Bishwash and Jagdish Prasad Bishwash separated from their
father in April, 1955 in mess only. The three brothers had got their
separate earning and income out of their separate milk business and
earning from other paddy, jute and crop business. Out of their personal
fund and earning, the three brothers acquired some of the suit lands in
their own names which are detailed in Schedule of the written
statement. Sitaram Bishwash gifted his property to the three brothers.
Therefore, the plaintiff has got no right, title and possession over the
properties which were acquired by the three brothers out of their own
income and over the lands of Sitaram Bishwash which was gifted by the
gift deeds to his sons separately. The defendants denied that out of
joint family fund, the land of Mauja Kohila measuring 16 acre 55
decimals was purchased. They also denied that out of joint family fund,
the land of Mauja Balwa was purchased. They also denied to have
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given 30 monds of paddy to the plaintiff in December, 1996. Their case
is that the plaintiff has got no interest in the suit property and she has
no right to demand partition. The share demanded by the plaintiff is
wrong. They also denied the allegation of the plaintiff that her father
owed Rs.20,000 for last 20 years and in lieu of that, he donated small
chunk of land at Nayatola, Line Bazar, Purnea. They also stated that
the punchnama is forged and fabricated document.
(4) Denying all the allegations made by the plaintiff, the
defendants have given full facts regarding acquisition of the suit lands
mentioned in detail in Schedule-A of the plaint. According to the
defendants, Schedule-I of the written statement was acquired by Siv
Prasad Bishwash through registered deed of gift executed by the father
of Sitaram Bishwash on 05.09.1962. Since the date of gift, Siv Prasad
Bishwash came in exclusive possession over the gifted land and he i.e.
defendant no.1 sold 22 decimals of plot no.268, Mauja Kohila to Dharam
Chand Mandal and put him to possession. The said vendee has not been
made party in the suit and, therefore, the suit cannot proceed. The
plaintiff and defendant nos.2 to 17 have got no interest or possession
over the gifted land mentioned in Schedule-I of the written statement.
The defendant no.1 is the exclusive owner and is in possession thereof.
(5) Schedule-II of the written statement were the lands
acquired by defendant no.1 out of his personal income and fund and he
has also been mutated with respect to the said land and out of the said
land, he has sold some of the lands to Yogendra Bishwash and he is
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coming in possession of the purchased land. The said purchaser is
necessary party but he has not been made party.
(6) Schedule-III of the written statement are the self-acquired
land of Hari Prasad Bishwash out of his own income and fund and out of
the said land, he has also sold some land to Hiralal Bishwash on
31.03.1975 and since after purchase, the vendee is in possession
thereof. He has also sold land by registered sale deed dated
17.06.1974 to Godai Bishwash out of the said self-acquired property
detailed in Schedule-III. He also sold 24 decimals on 17.06.1974 again
to Godai Bishwash and put him in possession. The remaining land is
coming in possession of Hari Prasad Bishwash and after his death, the
defendant nos.2 to 5 are coming in possession as exclusive owner.
(7) Schedule-IV land of the written statement was acquired by
Hari Prasad Bishwash by virtue of a registered gift deed executed by
Sitaram Bishwash, his father on 05.09.1962 and out of the said land, he
has also sold some lands to Sri Chhutahru Mahto and Sunder Mahto on
17.03.1990 and to Anil Yadav and others on 11.05.1992. He has also
sold land on 17.03.1990 to Satyanarain Bishwash, on 28.11.1974 to
Domai Bishwash and the remaining lands are coming in possession of
the defendant nos.2 to 5. The others have got no interest in the said
property. The purchasers are not made party in the suit.
(8) Schedule-V lands of written statement was acquired by late
Hari Prasad Bishwash out of his own income and fund and the lands
mentioned in detail in lot nos.1 to 4 of Schedule-VI were jointly
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acquired by defendant no.1, Siv Prasad Bishwash and Jagdish Prasad
Bishwash ancestors of defendant nos.6 to 10 in equal share from their
personal fund through 4 registered sale deeds dated 09.12.1967 and
28.02.1968 from Rabi Bishwash and others. After purchase, they were
in exclusive possession thereof and they also sold jointly to Yogendra
Prasad Bishwash some of the said acquired land. They also sold some
land to Saheblal Mahto on 21.12.1995. The vendees are in possession
of the purchased lands but they have not been made party in the suit.
They have also sold lot no.2 of the Schedule-VI of the written statement
by registered sale deeds dated 23.06.1997 to Bind Lal Mahaldar. They
have also sold some land of lot no.2 of Schedule-VI of written statement
on 09.12.1967. The others have got no title, interest and possession
over the said lands.
(9) The further defence is that out of the said Schedule-VI of
the written statement land, the defendant no.1 and defendant nos.5 to
10 have sold to other persons also on 22.12.1990 to Mohan Mahaldar,
10.12.1996 to Manik Chand Mahto. Therefore, the plaintiff has got no
title, interest and possession over the Schedule-VI lands. The
remaining lands are in possession of the acquired persons.
(10) So far Schedule-VII of the written statement is concerned,
the case is that the said land has been acquired by Jagdish Prasad
Bishwash through registered gift executed by Sitaram Bishwash on
05.09.1962. After gift, Jagdish Prasad Bishwash also sold some of the
gifted land by registered sale deeds dated 23.11.1990 to Manoj Thakur
and by registered sale deed dated 17.03.1990 and 10.06.1992 to Bind
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Lal Bishwash and others. So far the land of Schedule-VII of written
statement is concerned, the others have got no right, title, interest and
possession. All the vendees have not been made party by the plaintiff.
(11) The further defence is that the lands described in
Schedule-VIII to XII of the written statement belong to Ramcharan
Bishwash father of Sitaram Bishwash which he had acquired and
remained in possession till death. Likewise, the lands mentioned in
detail in Schedule- XIII and XIV was also the land of Ramcharan
Bishwash who had purchased it in the name of Fulkumari Devi wife of
Sitaram Bishwash. The lands of Schedule-VIII to XIV of the written
statement are concerned, according to the defendants, the said lands
were amicably partitioned between the three brothers and the three
sisters. The three daughters of Sitaram Bishwash orally relinquished
their right, title and interest in lieu of cash and ornaments. The lands
mentioned in detail in Schedule-VIII to XIV are the ancestral lands. Siv
Prasad Bishwash, Jagdish Prasad Bishwash and Hari Prasad Bishwash
had sold 79 decimals by registered sale deed dated 17.03.1990 to
Mohan Malakar but he has not been made party. Therefore, the
defendants admitted that the lands mentioned in Schedule-VIII to XIV
are the ancestral land of Sitaram Bishwash but in the amicable oral
partition, the three daughters of Sitaram Bishwash including the plaintiff
relinquished their right, title and possession in favour of three sons of
Sitaram Bishwash. The defendants in the written statement have
pointed out various defects in the area, plot number and khata number.
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(12) In view of the above pleadings of the parties, the learned
Court below framed the following issues:
I. Has the plaintiff got any cause of action for the suit?
II. Is the suit framed as maintainable?
III. Is the suit barred by law of limitation?
IV. Is the suit barred by adverse possession?
V. Is the property valued and the court fee paid there on sufficient?
VI. Is there any unity of title and possession between the plaintiff and
defendants with regard to the suit land?
VII. Is the plaintiff entitled to 1/6 share over the suit land described in
schedule-A of the plaint and movable described in schedule-B?
VIII. To what other relief or reliefs if any is the plaintiff entitled to?
(13) After trial, the learned Court below came to the conclusion
that the suit land has already been gifted by Sitaram Bishwash to his
three sons and their father has not left any dhurs of land so the plaintiff
cannot claim partition of 1/6th share. The three sons were separate
from their father since 1955 and thereafter, they started their separate
business and acquired the properties. The plaintiff is not entitled to
claim share in that property and dismissed the plaintiff’s suit.
(14) The learned counsel for the appellant submitted that there
are overwhelming evidences available on record which proves that the
properties were acquired by the three sons out of the income from joint
family property and, therefore, the properties acquired are joint family
property but the learned Court below has wrongly held that those
properties are self-acquired property of the three sons out of their
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separate earning from business. The learned counsel further submitted
that the gift deeds were never acted upon and moreover, even if, the
finding of the learned Court below to the effect that some of the
properties are self-acquired property of the defendants and some of the
properties have been acquired through gift deed of the year 1962
executed by Sitaram Bishwash then also, the plaintiff is entitled for her
1/6th share in the ancestral property but the learned Court below has
not at all decided this question as to whether the plaintiff is entitled for
her 1/6th share in the ancestral property or not. All the properties are
standing in the name of Sitaram Bishwash and Fulkumari Devi and,
therefore, the plaintiff is entitled for 1/6th share. Admittedly, the
properties described in Schedule-VIII to XIV in the written statement
are ancestral property according to the defendants-respondents
themselves but the learned court below has not decreed the suit with
respect to those properties also on the ground that there had been
amicable family settlement without there being any evidence. The
plaintiff never relinquished her interest in the property. The admissions
and/or relinquishment if any, made by the other two sisters of the
plaintiff will not bind the plaintiff. On these grounds, the learned
counsel for the appellant submitted that the impugned judgment and
decree are liable to be set aside and the plaintiff’s suit for partition be
decreed to the extent of 1/6th share.
(15) On the other hand, Mr. Sidheshwari Prasad Singh, the
learned senior counsel appearing on behalf of the respondent submitted
that the simple suit for partition is not maintainable. There had already
10
been oral family settlement and the parties are coming in possession of
the properties according to the settlement and the defendants have also
sold many of the properties to different persons and those purchasers
have not been made party to the suit and, therefore, the simple suit for
partition in absence of the purchasers is not maintainable. The learned
counsel further submitted that the plaintiff has filed the suit clubbing all
the properties which belong exclusively to the defendants which they
either acquired through gift deed of the year 1962 or acquired out of
their own income from business and, therefore, suit suffers from
multifariousness of causes of action. The learned counsel further
submitted that the sale deeds have been executed by the defendants
more than three years prior to institution of the suit and no prayer for
setting aside the sale deeds have been made nor ad valorem Court fee
have been paid by the plaintiff and, therefore, the suit for partition was
not maintainable. The learned counsel further submitted that so far
ancestral property is concerned, in view of Section 6 of the Hindu
Succession Act, the plaintiff will have only 1/24th share as the plaintiff
being the daughter will be entitled to inherit from the property of her
father, Sitaram Bishwash only. Sitaram Bishwash died in the year 1974
and, therefore, on his death there shall be a notional partition to find
out the share of Sitaram Bishwash. In that partition, the three sons will
get 1/4th each and Sitaram Bishwash will also get 1/4th share. This 1/4th
share of Sitaram Bishwash will devolved on his three sons and three
daughters equally i.e. 1/6th of 1/4th = 1/24th share will go to the three
sons and three daughters. Accordingly, the plaintiff is entitled to only
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1/24th share if it is held that the partition suit is maintainable and not
1/6th share. The learned counsel further submitted that the plaintiff has
intentionally not included the property given by Sitaram Bishwash to her
for residential purpose. The learned counsel further submitted that the
learned Court below has dealt with in great details with respect to all
the evidences and has rightly came to the conclusion that the plaintiff is
not entitled to any share in the suit property and, therefore, has rightly
dismissed the plaintiff’s suit. On these grounds, the learned counsel
submitted that the First Appeal is liable to be dismissed with cost.
(16) In view of the above rival contentions of the parties, the
points arise for consideration in this appeal is:
I. Whether the plaintiff has been able to prove unity of title and
possession over the suit property with the defendants?
II. Whether the plaintiff is entitled to 1/6th share or 1/24th share in the
suit property and whether the impugned judgment and decree are
sustainable in the eye of law?
(17) Both the points are interconnected and, therefore, both the
points are decided together. From perusal of the pleadings of the
parties, it appears that the parties have admitted the fact of separation
of three sons of Sitaram Bishwash from their father in the year 1955.
The plaintiff further pleaded at paragraph 10 of the plaint that the three
brothers purchased land of Mauja Kohila measuring 16.55 acres out of
the joint family fund and likewise, late Hari Prasad Bishwash had
purchased the land of Mauja Balwa out of joint family fund. Those
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properties are also joint property and the parties are in joint possession
thereof which have also been included in Schedule-A of the plaint. In
the written statement, it has been specifically pleaded that after
separation in the month of 1955, the three brothers of the plaintiff were
doing their separate business and out of their own income, they
purchased jointly in their names and also separately in individual
names. In the written statement, the defendants have given 14
Schedules. It has been specifically pleaded that Schedule-I, IV and VII
of the written statement are the properties acquired by the three
brothers through the gift deed executed by Sitaram Bishwash on
05.09.1962 in favour of the three sons separately vide paragraph 27,33
and 47 of the written statement. Likewise, in the written statement, it
has been pleaded that the properties mentioned in detail in Schedule-II,
III, V and VI of the written statement have been acquired by the three
brothers out of their own personal income vide paragraph 28,30,38 and
39 of the written statement. It has further been pleaded specifically
that out of the said properties acquired through gift and acquired out of
their personal income i.e. self-acquired properties mentioned in detail in
Schedule-I to VII of the written statement, the defendants have
transferred many of the properties to different purchasers right from the
year 1974 to 1997-98. Likewise, in the written statement according to
the defendants, the properties mentioned in detail in Schedule-VIII to
XIV are the ancestral property acquired by Ramcharan Bishwash but the
said property was orally partitioned between the three brothers after
the death of their father and the three daughters relinquished their
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interest in the said property in favour of the brothers vide paragraph 48
and 50 of the written statement.
(18) In view of the above pleading, it appears that according to
the plaintiff, total Schedule-A of the plaint property is the joint family
property whereas the defendants divided Schedule-A of the plaint into
three categories. The first category is that out of the property
mentioned in Schedule-A of the plaint, the properties which are gifted
by Sitaram Bishwash to three sons have been detailed in Schedule-I, IV
and VII. Likewise, the self-acquired properties have been detailed in
Schedule-II, III, V and VI of the written statement. The other
Schedules i.e. Schedule VIII to XIV of the written statement are
admitted to be the ancestral property.
(19) Now, let us examine the evidences by the parties with
respect to their respective claims. As stated above, it is admitted case
that the three brothers were separate in mess in the year 1955. The
defendants have produced sale deeds Exhibit-E/9, E/13 and E/15 which
are of the year 1959, 1967 and 1968 in the name of the brothers by
which the properties mentioned in Schedule III to VI of the written
statements were acquired by the three brothers. P.W.7 is the plaintiff
herself who has been examined on commission on 25.07.1999. She has
stated that when father was alive, all the brothers and sisters were joint
and the landed properties were also joint. There are 500 to 600 Bighas
of land in the joint family. She has denied that the brothers have given
any money or ornaments and that the sisters have relinquished their
interest in favour of the brothers. She has also denied about self-
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acquisition by the brothers. However, in the cross-examination, she has
stated that she cannot say how the lands have been acquired. She is
also unable to say about the acquisition of the suit land. On the
contrary, D.W.15,16 and 24 examined on behalf of the defendants have
stated that the properties have been purchased by the defendants i.e.
three sons of Sitaram Bishwash after separation out of their income
from separate business. D.W.1, Sheela Devi wife of Hari Prasad who
was also examined on commission has stated that the three sons of
Sitaram Bishwash were separate during the life time of their father. The
father executed gift deeds in favour of the three sons with respect to his
entire lands. The sons of Sitaram Bishwash had separate business and
separate income and out of that separate income, they purchased the
land in their names. Likewise, the defendant witness, Pramila Devi who
was also examined on commission has stated the same thing about
acquisition through gift deed and acquisition of the properties out of
income from separate business. D.W.18,23,25 and 34 are on the point
of separate purchase of land out of personal income by the three sons
of Sitaram Bishwash. D.W.9 and 12 have stated that Sitaram Bishwash
had executed gift deeds in favour of his three sons. The three sons had
separate income from their separate business and they purchased the
lands out of their separate income in their names. Likewise, the D.W.
27,29,31,37,40 and 41 have also stated the same thing.
(20) In view of the above fact, the pleading of the plaintiff to
the effect that the defendants have acquired some property as stated
above in their own names out of the joint family fund is not supported
15
by any evidence either oral or documentary. Except this pleading, there
is nothing on record to come to the conclusion that the properties were
acquired out of the joint family fund. When it is a case of the parties
that the three sons of Sitaram Bishwash separated themselves from
their father and they started living separately then there was no
question of joint family fund arises. Moreover, we have seen the
evidence of the plaintiff herself who is unable to say that how the suit
properties have been acquired.
(21) Further, according to the defendants, the properties which
were gifted by Sitaram Bishwash to the three sons in the year 1962 and
the properties which they acquired out of their own income have been
sold by them to different persons right from 1974 onwards and they put
the purchasers in possession thereof. The defendants have produced
Exhibit-E, E/1 to E/8, E/16 to E/21 which are registered sale deeds
executed by Siv Prasad Bishwash, Hari Prasad Bishwash, Sheela Devi
wife of Hari Prasad Bishwash and Pramila Devi wife of Jagdish Prasad
Bishwash out of khata no.42,53 and 56 Mauja Kohila and khata no.62 of
Mauja Balwa. From these registered sale deeds, it appears that the
defendants were exercising their independent right over the same.
Because it is admitted case that the sons were separate in 1955, there
was no question of joint family fund or joint family. It may be
mentioned here that the plaintiff has not added any of the purchasers in
the suit as defendants. Admittedly, the sale deeds are registered sale
deeds and, therefore, there is presumption that everybody had the
notice of transfer of the lands. In such view of the matter, the plaintiff
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cannot claim share in those properties in simple suit for partition
without praying for setting aside the sale deeds.
(22) The learned counsel for the appellant submitted that the
learned Court below has wrongly held that Sitaram Bishwash had gifted
the entire property to his three sons because the gift deeds covers only
31.40 acres. It may be mentioned here that so far this submission is
concerned, the plaintiff has not specified in the pleading as to which
part of the Schedule-A property was self-acquired property of Sitaram
Bishwash and which property was the ancestral property. According to
the defendants, Sitaram Bishwash had gifted his entire property to his
three sons. The said properties have been mentioned in detail in
Schedule-I, IV and VII of the written statement. After gift, the
defendants are also selling independently to different persons.
Therefore, whatever property held and possessed by Sitaram Bishwash
has been gifted to his three sons. So far this fact is concerned, there is
no denial in the evidence of the plaintiff also. The gift deeds are of the
year 1962. The plaintiff has not challenged these gift deeds.
(23) In view of my above discussion, in my opinion, the plaintiff
cannot be allowed to challenge the gift deeds now by submitting that
those gift deeds were never acted upon. As stated above, the
defendants after accepting the gift deeds have also sold some of the
properties as detailed in the written statement. This fact is not denied
in the evidence by the plaintiff. Accordingly, I find that the plaintiff has
got no unity of title and possession over the property acquired by the
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three sons of Sitaram Bishwash through the gift deeds of the year 1962
executed by Sitaram Bishwash regarding his entire property.
(24) The learned counsel for the appellant next submitted that
since the property in suit mentioned in Schedule-A of the plaint are
recorded in the name of Sitaram Bishwash and Fulkumari Devi, the
properties are not the ancestral property of Sitaram Bishwash rather
Sitaram Bishwash was the exclusive owner of the property. So far this
submission is concerned, it is not the case of the plaintiff either in the
plaint or in the evidence. On the contrary, the specific case of the
defendant is that the father Sitaram Bishwash gifted entire property.
Some properties have been acquired by the defendants after their
separation in the year 1955 and the ancestral properties which were
inherited by Sitaram Bishwash have been detailed in Schedule-VIII to
XIV of the written statement. So far this part of the pleading of the
defendant regarding ancestral property is concerned, there is no denial
in the evidence by the plaintiff. In other words, it can safely be said
that the properties mentioned in Schedule-VIII to XIV of the written
statement which are part of the Schedule-A of the plaint are only the
ancestral property.
(25) As stated above, the plaintiff’s case is that the brothers
separated in 1955 and, therefore, the plaintiff was getting proportionate
crops in lieu of her share. This indicates that the produce from the land
were being divided between the tenants in common and, therefore,
there is no question of any joint family fund arises. As stated above,
except this pleading that there was joint family fund, there is no
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evidence either oral or documentary in support of the said fact. I,
therefore, find that there was no joint family fund because the crops
were being divided between the parties. The defendant witnesses have
deposed to the effect that the three sons of Sitaram Bishwash had
separate business and income. Considering these aspects of the matter
and the evidences available on record to the effect that the defendants
had separate business and income and they purchased the suit property
in their own name and are dealing the same by transferring to different
purchasers, I find that the properties mentioned in detail in Schedule-II,
III, V and VI of the written statement are self-acquired properties of the
defendants. The plaintiffs failed to prove that those properties are the
joint family property and that she is in joint possession over the same.
Therefore, the finding of the Court below regarding the gifted property
and self-acquired property are hereby confirmed. Accordingly, it is held
that the plaintiff has got no unity of title and possession over the
properties mentioned in detail in Schedule-I to VII of the written
statement and, therefore, she is not entitled to any share.
(26) In the written statement, the defendants have however
admitted the fact that the properties mentioned in detail in Schedule-
VIII to XIV are the ancestral property. With respect to this ancestral
property, it is mentioned that there had been oral partition between the
three sons and three daughters of Sitaram Bishwash and all the three
daughters orally relinquished their interests in favour of the three
brothers. However, this fact has been denied by the plaintiff herself in
her evidence that she never relinquished her share. The learned
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counsel for the respondent submitted that all the defendants have filed
joint written statement including the two other sisters of the plaintiff
and, therefore, the defendant’s case is fully supported that there had
been oral settlement and the two daughters of Sitaram Bishwash
conceded to this fact by joining in the written statement. So far this
submission is concerned, it may be mentioned here that the admission
or relinquishment of the other two sisters will never bind the plaintiff.
The learned counsel next submitted that after separation and partition,
the defendants have been mutated which clearly supports the case of
the defendants. So far this submission is concerned also, I find no force
because the mutation or granting of rent receipts are not the documents
of title and moreover, it is not denied that the plaintiff is not the
daughters of Sitaram Bishwash or that she has no interest in the suit
property. According to the defendants, she relinquished in favour of the
brothers. When the plaintiff herself is deposing before the Court that
she never relinquished and further the suit has been filed for partition,
there can be no presumption that there had been an oral partition
between the parties and the plaintiff also relinquished her interest.
Except this pleading and evidence of one witness that the plaintiffs and
other two daughters relinquished their interest, there is nothing on
record. The learned counsel for the respondent next submitted that
since more than 23 years after the death of father, the suit has been
filed by the plaintiff and, therefore, she is estopped to claim partition
and she is not in possession in the suit property. Unless she proves that
she is in possession of the suit property, she cannot claim partition. So
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far this submission of the learned counsel is concerned, I find no force
because possession of one co-sharer is possession of the other co-
sharer. As stated above, it is admitted fact that the plaintiff is daughter
of Sitaram Bishwash. She has got interest in the properties of her
father. There is no pleading that she was ousted and also there is no
evidence that since when she was ousted from the suit property. There
is no pleading and evidence regarding adverse possession also.
Therefore, on the ground that the plaintiff did not take any step for
getting her name mutated or getting rent receipt, her title cannot be
extinguished. Likewise, merely the defendants have been mutated with
respect to the suit property, it cannot be held that they are the
exclusive owner or that the title of plaintiff has been extinguished. It is
well settled principle of law that the mutation papers or granting of rent
receipts or the revenue records neither create title in favour of anyone
nor extinguish title of any person. The plaintiff cannot be denied her
legal claim unless the defendant proves that she has been ousted and
thereby the defendants prescribed their title by adverse possession.
(27) The learned counsel for the appellant submitted that since
the properties are recorded in the name of Sitaram Bishwash or
Fulkumari Devi which is evident from Exhibit-2 series the plaintiff will
be entitled to 1/6th share in the property. So far this submission is
concerned, it may be mentioned here that no such case is made out by
the plaintiff in the plaint and in the evidence also. As stated above, she
is unable to say how these properties have been acquired. It is
admitted case that father of Sitaram Bishwash died prior to survey and,
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therefore, it is quite natural that the ancestral properties were also
recorded in the name of Sitaram Bishwash. On the contrary, the
defendants have specifically pleaded that the properties detailed in
Schedule-VIII to XIV are the ancestral property which belonged to
father of Sitaram Bishwash. In such circumstances, in my opinion, the
plaintiff will not be entitled to 1/6th share rather she will only be entitled
to 1/6th share in the share of her father, Sitaram Bishwash i.e. 1/24th
share out of the Schedule-VIII to XIV of the written statement. From
perusal of the impugned judgment, it appears that learned Court below
has not at all considered these aspects of the matter. The learned Court
below has decided the question regarding the lands covered by gift
deeds and the lands which have been acquired by defendants out of
their own income. The learned Court below has not at all dealt with
regard to the ancestral property.
(28) In A.I.R. 1978 Supreme Court 1239(Gurupad
Khandappa Magdum v. Hirabai Khandappa Magdum and others),
the Apex Court held that “in order to ascertain the share of heirs in
the property of a deceased coparcener it is necessary in the very
nature of things, and as the very first step, to ascertain the
share of the deceased in the coparcenary property. For, by
doing that alone can one determine the extent of the claimant’s
share. Explanation 1 to S.6 resorts to the simple expedient,
undoubtedly fictional, that the interest of a Hindu Mitakshara
coparcener “shall be deemed to be” the share in the property
that would have been allotted to him if a partition of that
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property had taken place immediately before his death. What is
therefore required to be assumed is that a partition had in fact
taken place between the deceased and his coparceners
immediately before his death. That assumption, once made, is
irrevocable.”
(29) In view of the settled principle of law as laid down by the
Apex Court, I find that the plaintiff is entitled only to the extent of
1/24th share in the ancestral property mentioned in the written
statement of Schedule-VIII to XIV. If any property has been sold by
any party, the same may be allotted in the share of the vendor as there
is no evidence of partition of the joint family property. Only as stated
above, D.W.40 has stated that there had been oral partition. Except
this bald statement, there is no evidence of partition. We have seen
that the plaintiff has not been given any share and she is denying to
have relinquished her interest. In such circumstances, the defendant’s
case of oral partition is not reliable and acceptable. I, therefore, find
that the plaintiff has been able to prove that there is unity of title and
possession, so far ancestral property is concerned.
(30) In view of my above findings, the finding of the learned
Court below with regard to Schedule-I to VII of the written statement is
hereby confirmed and it is held that the plaintiff is not entitled to any
share in those properties as those properties are either acquired
through gift or the properties are self-acquired properties of the
defendants. I further find that the plaintiff is entitled to only 1/24th
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share in the property mentioned in Schedule-VIII to XIV of the written
statement.
(31) In the result, this First Appeal is allowed in part. The
impugned judgment and decrees are modified and the plaintiff’s suit is
decreed to the extent of her 1/24th share out of the suit property, the
details of which has been mentioned in Schedule-VIII to XIV of the
written statement. In the facts and circumstances of the case, the
parties shall bear their own costs.
(Mungeshwar Sahoo, J.)
Patna High Court, Patna
The 28th April, 2011
Saurabh/A.F.R.
