Rohan Kumar And Another v. Lachhuman Pathak — 1976 DIGILAW 17 (PAT)

Judgment LALIT MOHAN SHARMA, J. 1. This second appeal has been filed by defendants 1 and 2 in a suit filed for the declaration of the title of the plaintiffs and for recovery of possession of the lands described in Schedule-B to the plaint. It is mentioned in the plaint that in case the relief regarding Schedule-B properties be not permissible in law, a decree for partition of the lands of Plots Nos. 41, 85, 250, 330, 337 and 628 of Jote No. 14 of village Bhaiyadih in the District of Santhal Parganas with the total area of 10.59 acres be passed. 2. According to the plaintiffs case, one Tarachand left behind two sons, Meghlal and Chintamani. Meghlal had a son Madhusudan and his wife was Khema. They had a daughter Lakshmi. Defendants 3 and 4 were sons of Lakshmi. Defendant No. 4 has since died. Chintamani had two sons Kala and Ramlal. Kalas son Gonu had a son Sukha, who died in 1948. The plaintiffs are the sons and grandsons of Sukha. Ramlals only son was Mukund who died in 1940 leaving behind his widow Mossamat Jago. The lady also died in 1951. The lands in suit were recorded in the survey records in the names of Mukund and Khema. The plaintiffs further alleged that there was a partition between the two owners half and half and Schedule-B properties were allotted to Mukunds share. On his death Jago Kuer came in possession and remained so till her lifetime. After her death the plaintiffs being the nearest reversioners inherited to the estate of Mukund including the Schedule-B properties. Defendants 1 and 2 who claimed to be settlees of the lands raised some dispute and dispossessed the plaintiffs after a decision in Sec.145 of the Code of Criminal Procedure. 3. The defence of defendants 1 and 2, who are defendants first party is Chintamani had only one son Ramlal and Kala was not related to Mukund. In this way the title of the plaintiffs is challenged. It is further asserted that defendants 1 and 2 got a settlement of the lands from Mossamat Jago and remained in possession. There was some quarrel with defendants 3 and 4 which was ultimately settled in favour of defendants first party. The plaintiffs are said to have no locus standi to maintain the suit. 4. It is further asserted that defendants 1 and 2 got a settlement of the lands from Mossamat Jago and remained in possession. There was some quarrel with defendants 3 and 4 which was ultimately settled in favour of defendants first party. The plaintiffs are said to have no locus standi to maintain the suit. 4. Defendants 3 and 4 also filed a written statement supporting defendants 1 and 2. 5. The trial Court rejected the case and evidence of the plaintiffs on the question of their claim of relationship with Mukund. It held that defendants 3 and 4 were the nearest heirs of Mukund and inherited the entire properties on the death of Mossamat Jago in 1951. No finding in was recorded on the story of settlement set up by defendants 1 and 2. The plaintiffs appealed. It has been held by the lower appellate Court that the plaintiffs are the nearest agnatic relations of Mukund and came in possession of his lands on the death of his widow. It was further held that the lands always remained in possession of Mossamat Jago during her lifetime and thereafter in possession of the plaintiffs. Sukha had died in 1948, that is, earlier than Jagos death. Although no finding on the case of partition made out in the plaint was recorded by the court, a decree was passed in favour of the plaintiffs specifically in regard to Schedule-B lands as asked for in the plaint. Defendants 1 and 2 have appealed. . 6 Mr. R.S. Chatterjee, learned counsel for the appellants first contended that defendant No. 4 died when the case was pending in the trial Court and his heirs were not substituted.The result, as suggested by learned counsel is that the entire appeal abated. It is true that the appeal must be held to have abated against defendant No. 4, but on the facts of this case, I am not satisfied that the argument addressed on behalf of the appellants is correct. The relief prayed for in the plaint is directed against defendants 1 and 2, who claim the title as well as the possession. Defendant Nos. 3 and 4 supported the claim of defendants 1 and 2 and in this situation it cannot be said that defendant No. 4 or for that matter defendant No. 3 were necessary parties to be impleaded in the suit. Defendant Nos. 3 and 4 supported the claim of defendants 1 and 2 and in this situation it cannot be said that defendant No. 4 or for that matter defendant No. 3 were necessary parties to be impleaded in the suit. I, therefore, hold that the maintainability of the suit against defendants 1 and 2 was not adversely affected by the non-substitution of the heirs of defendant No. 4 in the trial Court. 7. Mr. Chatterjee next argued that under the Hindu Law the plaintiffs were not the heirs to the estate of Mukund in 1951 and the suit must, therefore, be held to be not maintainable at their instance. It is said that defendants 3 and 4 must be held to be the heirs at law to the estate of Mukund. Learned counsel said that this is the main point in the case for the consideration of which the learned single Judge has referred this appeal to be decided by a Division Bench. 8. Mr. Chatterjee contended that the inheritance to the estate of Mukund would be governed by Dayabhaga School of Hindu Law, as he was the resident of Santhal Parganas. Reliance was placed on the case of Batai Bala Dasi V/s. Chabilal Sen, ( AIR 1974 Pat 147 ). The argument does not appear to be correct. It has been fully established at all points of time that the Dayabhaga School of Hindu Law was applicable in Bengal and the Mitakshara law applies to the rest of India; of course, different Schools were recognised for different parts of the country within the Mitakshara law. No material has been produced before us to support the argument that the Dayabhaga School of Hindu Law should be held to prevail in parganas which are a part of the State of Bihar. The decision in Batai Bala Dasi (supra) does not deal with this aspect of the matter at all. It was assumed that Dayabhaga School of Hindu Law was applicable to the parties to that case. It is fully established that a family migrating from one part of the country to another may carry his personal law, that is, the law applicable to the place of his earlier residence. It was assumed that Dayabhaga School of Hindu Law was applicable to the parties to that case. It is fully established that a family migrating from one part of the country to another may carry his personal law, that is, the law applicable to the place of his earlier residence. I, therefore, assume that in the case of Batai Bala Dasi the parties being Bengalis as is apparent from the judgment, must have come from Bengal and must have carried the law applicable in Bengal with them. Until they adopted the lex loci the old law would govern them. The decision, therefore, does not help us in deciding the question raised in the present appeal. It has not been suggested that in this case at any earlier stage that the parties although residents of Bihar were governed by Dayabhaga School of Hindu Law. I, therefore, reject this contention and hold that the parties are governed by the Mitakshara School of Hindu Law. 9. Mr. Chatterjee next contended that even assuming that Mitakshara School of Hindu Law applies to the parties, the plaintiffs must be held not to be the heirs at law of Mukund. It is said that having regard to the relationship the plaintiffs cannot be described as sapindas of Mukund. Mr. Chatterjee took us to the discussion in the Book on Hindu Law by Mulla. Mulla in Section 80, which deals with the doctrine of spiritual benefit under Dayabhag school. Reliance was placed on the statement that pinda is offered to the three immediate paternal ancestors and the three immediate maternal ancestors. The conclusion which the Chattarjee wants to draw from this that only those relatives can be called Sapindas is an impossible one. It is too late in the day to suggest that an "uncles sons son" is not an heir in Hindu Law. Mulla himself has mentioned him in Sec. 43 as Item No. 23. The doctrine of religious efficacy is not the guiding principle in Mitakshara system. 10. It is true that for purposes of succession also originally Sapindaship was confined to three degrees of agnatic kindred in ascent and in descent (Mayne Sec. 475), but this was in remote past. There was a lot of development made in the law by other Rishis and ultimately it crystallised in the following form. 10. It is true that for purposes of succession also originally Sapindaship was confined to three degrees of agnatic kindred in ascent and in descent (Mayne Sec. 475), but this was in remote past. There was a lot of development made in the law by other Rishis and ultimately it crystallised in the following form. The Mitakshara recognised three classes of heirs, namely, (a) Gotraja Sapindas, (b) Samanodaks, and (c) Bandhus. The first class succeeds before the second and the second succeeds before the third. The Sapindas of a person include besides his six male descendants in the male line and six ascendants in the male line, the six male descendants in the collateral male line of each of his six male ascendants. (See Mullh Sec.39 and Mayne Sec. 513). I accordingly hold that Sukhas sons who are the uncles sons sons sons of Mukund were the nearest reversioners and inherited the properties on the death of Mossamat Jago in 1951. 11. The next point urged on behalf of the appellants is that the finding recorded by the lower appellate Court reversing that of the trial court on the question of the disputed relationship of the plaintiffs with Mukund is illegal and not adequate in eye of law for sustaining a decree in favour of the plaintiffs. The trial court considered the evidence of all the witnesses relevant on the point examined on behalf of the plaintiffs and rejected their evidence. The lower appellate Court referred to the evidence of the plaintiffs witnesses in paragraph 7 and held in paragraph 14 of the judgment that the plaintiffs are nearest agnatic relations of Mukund. Continuing further in the same paragraph the learned Additional District Judge held as follows:- "It is to be noted that the genealogy as given in the plaint extends to several degrees upwards and it cannot be expected that direct evidence in support of the plaintiffs case regarding Kali and Ramlal being brothers will be available. Continuing further in the same paragraph the learned Additional District Judge held as follows:- "It is to be noted that the genealogy as given in the plaint extends to several degrees upwards and it cannot be expected that direct evidence in support of the plaintiffs case regarding Kali and Ramlal being brothers will be available. But the material and evidence on record inclined me to the view that these defendants first party or second party never came in possession of any land of Jago and Mukund and that defendant second party are no heirs of Mukund." Before a finding in favour of the plaintiffs could be given, the court ought to have given a clear finding on the question of relationship between the plaintiffs and Mukund which has been strongly denied by the defendants. The court is not right in saying that there is no direct evidence in support of the plaintiffs case. We have not examined all the evidence on the record, but the judgment of the trial Court itself indicates that there is at least some direct evidence which includes the deposition of P. W. 13. The finding in the general terms that the plaintiffs are the nearest agnatic relations of Mukund is vague specially when all the plaintiffs are not related to Mukund in the same way. Some of the plaintiffs are remoter in degree. The discussion in paragraph 7 of the judgment also indicates that excepting three witnesses the others have spoken about the possession of the parties. No finding was recorded in paragraph 7. The question of relationship is a vital one for the success of the plaintiffs, inasmuch as, their locus standi depends on it. The final court of fact ought to consider the entire evidence on the records of the case before disposing of the appeal, and specially so, if the appeal is going to be allowed. It has bean pointed out by Mr. Chatterjee that many of the considerations which weighed with the trial Court have not been taken into account by the lower appellate Court. For example, the trial court drew adverse inference from the non-filing of the written genealogy of the family which has been accepted by the plaintiffs as existing. It has bean pointed out by Mr. Chatterjee that many of the considerations which weighed with the trial Court have not been taken into account by the lower appellate Court. For example, the trial court drew adverse inference from the non-filing of the written genealogy of the family which has been accepted by the plaintiffs as existing. For all these reasons, I am of the view that the finding recorded by the lower appellate Court must be set aside and the matter should be sent down for a reconsideration of the entire evidence on the record. 12 In the result, this appeal succeeds and is allowed and the decision of the lower appellate Court is set aside. The case is sent back to the lower appellate Court for disposal in accordance with law. The Court will hear fresh arguments on the questions of fact and thereafter deliver judgment in the light of the observations made above. The costs in this appeal will abide the final result in the litigation. BIRENDRA PRASAD SINHA, J. 13 I agree.