Birla Singh v. Jaleshwar Singh — 1968 DIGILAW 72 (PAT)

Judgment Tarkeshwar Nath, J. 1. This appeal by the defendants arises out of a suit for partition of half share in the properties described in the plaint. 2. The case of the plaintiffs was that one Ramdhayan Singh had two sons; Achaibar Singh and Biteshwar Singh. Achibar Singh had two sons; Achuta Singh and Hitan Singh. Achuta Singh himself had two sons; Pradip Singh and Chandrika Singh. Pradip had a son Ram-asis Singh. Biteshar Singh had two sons; Mithoo Singh and Nanhku Singh. Mithoo Singh had one son Jainath Singh, and the latter has two sons, that is Jaleshwar Singh and Girwardhari Singh (the two plaintiffs in this case). Nanhku Singh left no issue and his line became extinct. Hitna Singh had a son Basudeo Singh, and the line of Basudeo Singh also became extinct. Chandrika Singh died as a bachelor Achaibar Singh and Biteshar Singh were separate in mess, business and property. Achuta Singh and Hitan Singh were members of a ioint family, and the latter died leaving Basudeo Singh as his son. After the death of Basudeo Singh, his share devolved on Pradip Singh. As already stated, Achuta Singh died leaving his two sons; Pradip Singh and Chandrika Singh, and after the death of Chandrika Singh, his share devolved upon Pradip Singh. In this manner Pradip Singh became the full owner of the properties which at one time belonged to Hitan Singh and Chandrika Singh. Pradip Singh died on 28-8-1956. leaving his widow Sheolochan Kuer, who was originally defendant No. 5 in the suit, and a son Ramasis Singh. Ramasis Singh also died in the same year, that is. on 24-12-1956, leaving his widow Saraswati Devi, defendant No. 6. Defendants 5 and 6 came in possession of the properties of Pradip Singh after his death. Those two defendants ft and 6 cultivated the lands jointly by a private arrangement between them and the crops used to be divided half and half. Sheolochan Kuer (defendant No. 5) executed a deed of gift dated 6-6-1958 in favour of the plaintiffs in respect of the properties described in the plaint and registered the said deed of gift, and since then the plaintiffs came in joint possession of those lands with defendant No. 6. Defendant No. 6 executed certain sale deeds in respect of some of those lands in favour of defendants 1 to 4. Defendant No. 6 executed certain sale deeds in respect of some of those lands in favour of defendants 1 to 4. The share of defendant No. 5 was half and that of defendant No. 6 the other half. By virtue of the deed of gift the plaintiffs had half share, which at one time belonged to defendant No. 5. The plaintiffs asked defendants 1 to 4 and 6 to divide their share, but they refused, and hence the plaintiffs instituted this suit, giving rise to this appeal, for partition of their half share. The plaintiffs valued the suit at Rs. 10,000/-. but paid the fixed court-fee of Rs. 22/8/-. 3. Defendant No. 5 at first filed a written statement admitting the case of the plaintiffs, but later on she filed another written statement supporting the case of defendants 1 to 4. She, however, died in December, 1959, and then Saraswati Debis two daughters Krishna Kumari and Indu alias Janak Dulari were substituted as heirs and impleaded as defendants 5 and 5(a) respectively. Defendants 1, 3, 4 and 6 filed a joint written statement contesting the suit of the plaintiffs on grounds, inter alia, that the genealogical table given by the plaintiffs was wrong in material aspects and the plaintiffs had acquired no title at all by the deed of gift in their favour. According to them, Sheolochan Kuer (defendant No. 5) was the widow of Basudeo Singh, and not of Pradip Singh. Pradip Singh was married to Rarnrati Kuei, who had already predeceased Pradip Singh, and on the death of Pradip Singh it was Ramasis Singh who came in possession of all the properties as the sole survivor of his family. Ramasis Singh died leaving behind his widow Saraswati Debi (defendant No. 6) and two daughters, Krishna Kumari and Janak Dulari. and they all inherited the estate of Ramasis Singh Basudeo Singh died in a state of jointnest with Pradip Singh and Chandrika Singh Sheolochan Kuer (defendant No 5) had only a right of maintenance, and as such she was not at all competent to execute the deed of gift in favour of the plaintiffs. and they all inherited the estate of Ramasis Singh Basudeo Singh died in a state of jointnest with Pradip Singh and Chandrika Singh Sheolochan Kuer (defendant No 5) had only a right of maintenance, and as such she was not at all competent to execute the deed of gift in favour of the plaintiffs. Their further plea was that the suit was in reality a suit for declaration of title and recovery of possession, and as such it was incumbent on the plaintiffs to pay ad valorem court-fee on the value of the properties which would not be less than Rs 30,000/-. Their written statement further disclosed that defendant No. 6 sold the properties, described in Schedule 1 of the written statement to defendants 1 to 4 by four sale deeds, all dated 3-7-1958, for legal necessity and those defendants were in possession of those properties. There was a formal written statement by the guardian-ad-litem of the minor defendant No. 2. 4. The Additional Subordinate Judge (trial Court) held that Sheolochan Kuer (originally impleaded as defendant No. 3) was the widow of Pradip Singh and mother of Ramasis Singh. According to him the deed of gift in favour of the plaintiffs was valid and genuine and they acquired valid title to the extent of 7/16th share in the suit properties But he found that the plaintiffs were not in joint pos- session with the defendants in respect of the properties in suit, and thus there was no unity of title and unity of possession between the plaintiffs, on the one hand, and the defendants, on the other. In this view of the matter, his conclusion was that the suit for partition was not maintainable. Accordingly, he dismissed, it on contest against the defendants directing the parties to bear their own costs. Being aggrieved by the said dismissal, the plaintiffs filed an appeal valuing it at Rs. 10,000. The Additional District Judge affirmed the finding of the trial Court that Sheolochan Kuer was the widow of Pradip Singh. He further held that the deed of gift (Ext. 6) in favour of the plaintiffs executed by Sheolochan Kuer was valid and the plaintiffs had acquired a good title in respect of 7/16th share in the properties in suit. 10,000. The Additional District Judge affirmed the finding of the trial Court that Sheolochan Kuer was the widow of Pradip Singh. He further held that the deed of gift (Ext. 6) in favour of the plaintiffs executed by Sheolochan Kuer was valid and the plaintiffs had acquired a good title in respect of 7/16th share in the properties in suit. On the question of the maintainability of the suit, he took a different view, and his conclusion was that the plaintiffs being the donees from Sheolochan Kuer, they stepped into the shoes of the donor and they became co-tenants along with defendant No. 6 and her daughters. In this view of the matter, he held that the plaintiff? were co-sharers in (sic) the ad valorem court-fee. In other words, the suit for partition was maintainable. In view of these findings, he allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiffs suit for partition of their 7/16th share in the suit properties. A preliminary decree was passed in these terms, and being aggrieved by this decree the defendants have filed this second appeal, valuing it, at Rs. 10,000/-. 5. The first contention raised by learned counsel for the appellants was that the suit and the appeal before the lower appellate Court being valued at Rs. 10,000.00 respectively, the appeal before the District Judge was not maintainable. In support of it, he relied on the provisions of Sec.21 of the Bengal. Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), as amended by the Bengal, Agra and Assam Civil Courts (Bihar Amendment) Act, 1959 Sec.21 previously provided that an appeal from a decree or order of a Subordinate Judge shall lie to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees. But after the amendment, the appeal would lie before the District Judge even if the value of the original suit was more than five thousand rupees but less than ten thousand rupees. In the present case, the suit was valued at Rs. 10,000.00 and as such the contention was that the appeal lay to the High Court, and no1 before the District Judge. In the present case, the suit was valued at Rs. 10,000.00 and as such the contention was that the appeal lay to the High Court, and no1 before the District Judge. Learned Counsel went to the extent of submitting that on this score the decree passed by the Additional District Judge was null and void, inasmuch he had no jurisdiction at all to entertain an appeal against the decree of the 1st Additional Subordinate Judge. 6. Learned counsel for the plaintiffs, on the other hand, refuted the aforesaid contention and pointed out that the objection with regard to the non-maintainability of the appeal was not at all taken before the Additional District Judge, and as such it could not be raised at this stage. He relied upon the provision of Section -11 of the Suits Valuation Act and the decisions in Ramdeo Singh V/s. Rai Narain Singh, AIR 1949 Pat 278 (FB), Kiran Singh V/s. Chaman Paswan, AIR 1954 SC 340 and Rajaram Sah V/s. Narad Thakur, 1959 BLJR 625 = ( AIR 1960 Pat 136 ). His argument was that the provisions of Section. 11 of the Suits Valuation Act should be given a wider connotation even if there was no case of either over valuation or under valuation of the properties in suit and the defendants should not be allowed to take this technical plea after they had lost the case on merits in both the Courts. Learned counsel for the appellants, on the other hand, submitted that if the properties were either over valued or under valued in a suit, then the provisions of Sec.11 undoubtedly applied in terms, but in the present case those provisions could not be attracted, and, on the very face of the valuation put by the plaintiffs either in the trial Court or in the lower appellate Court the District Judge had no jurisdiction to entertain the appeal. He relied on Sitaram Singh V/s. Tika Ram Singh, AIR 1942 Oudh 481 and Mt. Sunder V/s. Kandhaiya Lal, AIR 1946 All 456 to support his contention that Sec.11 did not apply to cases where the suit was properly valued and the plaint was then presented in a court which had no jurisdiction to deal with it. He relied on Sitaram Singh V/s. Tika Ram Singh, AIR 1942 Oudh 481 and Mt. Sunder V/s. Kandhaiya Lal, AIR 1946 All 456 to support his contention that Sec.11 did not apply to cases where the suit was properly valued and the plaint was then presented in a court which had no jurisdiction to deal with it. The Supreme Court held in AIR 1954 SC 340 : "A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties." It is not necessary to deal elaborately with the principles laid down in these cases, inasmuch as a petition for amendment of the plaint was filed by the plaintiffs in the trial court on 16-2-1960, and that would be a sufficient answer to the contention of learned counsel for the appellants about the non-maintainability of the appeal before the Additional District Judge. According to the written statement o! defendants 1, 3, 4 and 6, defendant No. 6 had sold to defendants 1 to 4 the lands described in Schedule 1 of their written statement. That Schedule indicates that plot No, 1907 measuring 0.26 acre of Khata No. 531 was sold to Ramjanam Singh (defendant No. 4) by a registered sale deed dated 3-7-1958 for Rs. 1500/-, plot No. 2396 measuring 10 kathas of Khata No. 47 was sold to Bansropan Singh (Defendant No. 2) by a registered sale deed dated 3-7-1958 for Rs. 2000/-and the other 10 kathas of the very same plot No. 2396 was sold to Birda Singh (defendant No. 1) for Rs. 2000.00 by a registered sale deed dated 3-7-1958, and lastly plot No. 1871 measuring 0.12 acre of Khata No. 582 was sold to Ramjas Singh (defendant No. 3) by a registered sale deed on the very same date (3-7-1958). I would then refer to the petition for the amendment of the plaint filed on 16-2-1960 by the plaintiffs. Paragraphs 1 and 2 of the said petition can be usefully quoted: "1. I would then refer to the petition for the amendment of the plaint filed on 16-2-1960 by the plaintiffs. Paragraphs 1 and 2 of the said petition can be usefully quoted: "1. That, in the aforesaid case, the controversy regarding the valuation and the insufficiency of the court-fee and the maintainability of the suit had cropped up on account of the fact that the vendees of defendant No. 6 Sarswati Devi who has sold a portion of the suit property to defendants Nos. 1 to 4 are parties. 2. That, your petitioner admits the title and possession of the aforesaid purchasers and wants the partition by metes and bounds of the properties among your petitioners and the rest ,of the defers dants." After stating these facts in that petition, a prayer was made to amend paragraph 11 of the plaint by deleting the latter portion of it. The plaintiffs had stated in latter portion of paragraph 11 of the plaint that in spite of the sale deeds, the vendor defendant No. 6 was continuing in possession jointly with the plaintiffs. But by the amendment referred to above, this averment (latter portion) was deleted. Learned counsel for the plaintiffs submitted that they had clearly admitted the title and possession of the purchasers (defendants 1 to 4) in respect of the properties claimed by them and mentioned in schedule 1 of their written statement and they no longer wanted a partition of these properties. In other words, from the time of the filing of that petition, they (plaintiffs) did not want a decree for partition as against defendants 1 to 4 who had purchased those properties and the plaintiffs confined their claim only with regard to the other properties. This amendment sought for was allowed by the trial Court by its order No. 67 dated 16-2-1960 on payment of Rs. 100.00 as costs to defendants 1 to 4 and defendant No. 6 by holding that the plaintiffs could not be prevented from giving up their case as against defendants 1 to 4 and the amendment sought for amounted to an indirect acceptance of the title of defendants 1 to 4 to the portions of the suit lands which they had purchased by several sale deeds executed by defendant No. 6. The correct position after allowing the said amendment was that the properties purchased by defendants 1 to 4 were not the subject matter of the suit and the schedule given in the plaint also ought to have been amended by excluding those properties. It seems that by an oversight and by the inartistic drafting of the petition for the amendment of the plaint, It did not strike either party or the trial Court" to exclude those properties from the Schedule of the plaint. But the real effect of the amendment was that the plaintiffs did not want a decree in respect of the properties which had been purchased by defendants 1 to 4. The position thus is that the lands purchased by defendants 1 to 4, as mentioned above, cannot be treated as the subject matter of the suit for partition, and on their exclusion from the schedule of the plaint, the suit cannot be held to have a valuation of Rs. 10,000/-, which was initially put in the plaint, and once the value of the suit is less than Rs. 10,000/-, the appeal will lie before the District Judge. The plaintiffs, no doubt, valued their appeal in the lower appellate Court at Rs 10,000/-, but that was under a clear misapprehension, and they only copied that figure from the plaint which gave the value of the suit without properly applying their mind to the question of valuation after the amendment of the plaint and giving up of their claim as against defendants 1 to 4 in respect of the properties purchased by them. In Sathappa Chettiar V/s. Ramanathan Chettiar, AIR 1958 SC 245 , it was observed that in suits for partition the plaintiff attempted to obtain the benefit of Article 17-B of Schedule II in the matter of payment of Court-fees, and as such either he or his advisers were apt to take the view that it was unnecessary to state the amount for which relief was sought to be claimed [or the purposes of court-fees and the valuation for jurisdiction purposes alone was, therefore, mentioned. There was a further observation that it would not be reasonable or proper in such a case to hold the plaintiff bound by the valuation made by him for the purposes of jurisdiction and to infer that the said valuation should be also taken as the valuation for the payment of the court-fees. 7 In the view which I have taken, it is quite clear that on exclusion of the properties, purchased by defendants 1 to 4, the value of the suit would be undoubtedly less than Rs. 10,000/-, and as such the appeal was maintainable before the Additional District Judge. Accord- ingly, the decree passed by him cannot be held to be null and void. 8. Learned counsel for the appellants further submitted that the deed of gift was executed by a pardahnashin lady Sheolochan Kuer, and as such the onus was on the plaintiffs to prove that she had an independent advice before the execution of that deed and that she understood the effect of that transaction. He relied OH Mst. Kharbuja Kuer V/s. Jang-bahadur Rai, AIR 1963 SC 1203 . It appears that in that case the Munsif and the Subordinate Judge had held that the plaintiff and her mother-in-law were ignorant, pardahnashin ladies, that the two ladies had full confidence in the 1st defendant, and that the document Ext. C was not read over to the plaintiff and she did not execute it after understanding the contents thereof. These concurrent findings of the Courts below were set aside by the High Court on the ground that the Courts had thrown the burden of proof wrongly on the defendant and the High Court had taken the view that it was the duty of the plaintif to prove "that there was fraud committed" and as that had not been established, the question whether the document had been read over and explained to the plaintiff did not arise. The High Court considered the evidence from that standpoint and held that the plaintiff had not established her case; and on that finding, the High Court had dismissed the suit. The High Court considered the evidence from that standpoint and held that the plaintiff had not established her case; and on that finding, the High Court had dismissed the suit. Their Lordships of the Supreme Court held that the High Court had no jurisdiction to entertain a second appeal on the ground of even erroneous finding of fact and that a pardahnashin lady was entitled to the protection in the sense that the burden of proof rested upon the person who sought to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction In other words, it should be established that it was not only her physical act but also her mental act. In the present case, the evidence on this point has been carefully considered by both the Courts before coming to the conclusion that Sheolochan Kuer executed the deed of gift after fully understanding the contents of the same. She was examined on commission and her evidence was that the Sub-Registrar who went to her residence had told her that she would repent subsequently as she had given away her entire wealth. In spite of this warning, she admitted the execution of the said deed before the Sub-Registrar. Her evidence further is that the plaintiffs had promised to give her some money, but they did not pay her after the execution of the deed of sift and said that they would pay her after the crops would be produced in her land. The learned Addi- tional District Judae further referred to the evidence of the identifier (P. W. 1) and the attesting witnesses (P. Ws. 9 and 11) before coming to the conclusion that there was a conscious execution of the deed of sift by Mossomat Sheolochan Kuer. On a careful analysis of the evidence he had no hesitation in holding in agreement with the trial Court that she executed the deed of gift after the contents of the same were fully explained to her and after she understood that she was doing. This finding of fact about the proper execution of the deed of gift by her after fully understanding the pros and cons of the transaction cannot be interfered with in this second appeal, and it must be affirmed. 9. This finding of fact about the proper execution of the deed of gift by her after fully understanding the pros and cons of the transaction cannot be interfered with in this second appeal, and it must be affirmed. 9. Another attack of learned counsel for the appellants was that the deed of gift in the present case was not valid inasmuch as it wah for consideration, meaning thereby that the plaintiffs had promised to pay some money to Sheolochan Kuer for the execution of the deed of gift. Sheolochan Kuer has, no doubt, said in her evidence that the plaintiffs had promised to give her some money. but a plea on this score was not taken by the contesting defendants in their written statement and there is no material, apart from her testimony, to substantiate this contention raised by learned counsel at this stage. This objection not having been taken earlier cannot be taken now as the plaintiffs had no opportunity to meet it. 10. Both the Courts below have held that Sheolochan Kuer was the widow of Pradip Singh, and this finding could not be contested in this second appeal. The position thus is that the plaintiffs had acquired valid title by the deed of gift, but they are not entitled to a decree for partition in respect of the properties purchased by defendants 1 to 4 and their share to the extent of 7/16th has to be carved out only in respeci of the remaining properties This aspect of the case has been lost sight of by the Additional District Judge and he was not right in decreeing the suit of the plaintiffs- in respect of the said share in the "suit properties" The properties in suit, after the amendment of the plaint, are only such properties in which the plaintiffs and defendants 5, 5(a) and 6 alone have share. 11. In the result, the appeal is allowed in part and the judgment and decree of the learned Additional District Judge are modified to this extent that the suit of the plaintiffs is decreed against defendants 5, 5(a) and 6 only for partition of their "/16th share in the properties mentioned in the plaint barring 0 26 acre of plot No. 1907 of Khata No 531. Tauzi No. 4717, 10 kathas of plot No. 2896 of khata No. 47, Tauui No. 4593, another 10 kathas of plot No. 2396, Khata No. 47, Tauzi No. 4593 and 0.12 acre of plot No. 1871, khata No. 582, Tauzi No. 4717; but it is dismissed against defendants 1 to 4. In the circumstances of the present case, the parties will bear their own costs througnout and the decree is varied even with regard to costs. B.N.Jha, J. 12 I agree.