ABHIMANYU SAHU v. NARAYAN CHANDRA SAHU — 1999 DIGILAW 404 (ORI)

P. K. MISRA, J. ( 1 ) PLAINTIFF has filed this appeal. The suit was filed for partition of properties as described in Ka, Kha, Ga and Gha schedules of the plaint. The plaintiff's prayer for partition has been accepted by the trial court in respect of Lot Nos. 1 and 3 of Ka schedule and Lot Nos. 1 and 4 of kha Schedule. The prayer for partition has been rejected in respect of Lot. No. 2 of Ka Schedule and in respect of the entire Ga and Gha Schedule properties. So far as Lot Nos. 2, 3 and 5 of kha Schedule are concerned, it has been held that the plaintiff alone is entitled to such properties. The plaintiff is aggrieved by the refusal of the trial Court to partition Lot No. 2 of Ka schedule and Ga and Gha Schedule properties. The decree of the trial Court in respect of other properties having not been challenged by any of the parties has become final and the present appeal is confined only to Lot No. 2 of Ka Schedule and Ga and Gha Schedule properties. ( 2 ) THE cases of the rival parties relating to the aforesaid disputed properties now involved in appeal are only required to be discussed. There is no dispute that plaintiff and defendant No. 1 are two brothers and Gajendra was their father and defendant No. 2 is their widowed sister. The dispute relating to Lot No. 2 of Ka Schedule and Ga Schedule is confined to plaintiff and defendant No. 1, whereas the dispute relating to Gha Schedule properties involves primarily the plaintiff and defendant no. 2. ( 3 ) LOT No. 2 of Ka Schedule is a leasehold property. It is the case of the plaintiff that out of the leasehold property extending to Ac. 0. 70 decimals, Ac. 0. 43 decimals of land had fallen to the share of Gajendra in a registered deed of partition effected in the year 1969 and the balance Ac. 0. 27 decimals had fallen in equal proportion to the shares of three other brothers of late Gajendra. The plaintiff claims that some constructions have been made on lot No. 2 with the joint contribution of plaintiff and defendant No. 1 and after the death of gajendra in the year 1978, the same should be partitioned between plaintiff and defendant no. 27 decimals had fallen in equal proportion to the shares of three other brothers of late Gajendra. The plaintiff claims that some constructions have been made on lot No. 2 with the joint contribution of plaintiff and defendant No. 1 and after the death of gajendra in the year 1978, the same should be partitioned between plaintiff and defendant no. 1, as the other sisters of plaintiff and defendant no. 1 including defendant No. 2 have relinquished their interest. The case of defendant No. 1 in respect of this property is that the periodical lease having not been renewed, plaintiff cannot claim any share. It is further pleaded that even assuming that plaintiff can claim any share, it had been decided by Gajendra and his brothers that out of Ac. o. 43 decimals, defendant no. 1 would get Ac. O. 34 decimals and the balance Ac. 0. 09 decimals should be enjoyed by Gajendra. For the aforesaid purpose, defendant No. 1 has relied upon an agreement between Gajendra. his brothers and defendant no. 1, dated 10. 1. 1969. ( 4 ) THE trial Court has rejected the prayer for partition of plaintiff in respect of this Lot in Ka Schedule on the ground that the lease having expired and having not been renewed, parties cannot claim any right for partition. It is further found that the property being khasmahal in nature, in absence of the State, the prayer for partition is not sustainable. ( 5 ) THE learned counsel appearing for defendant No. 1-respondent has supported the conclusion of the trial Court on this aspect. He has also filed an application under Order 41, Rule 27, Code of Civil Procedure, for admitting the order dated 5. 1. 1984, passed by the Tahsildar, Chandabali, recommending that out of Ac. 0. 43 decimals. Ac. 0. 34 decimals may be renewed in favour of defendant No. 1 and Ac. 09 decimals should be renewed in favour of the plaintiff. The plain tiff-appellant has filed objection stating that earlier the Tahsildar had recommended that the Ac. 0. 43 decimals of land should be renewed half and half in favour of plaintiff and defendant No. 1. ( 6 ) THE reasoning given by the trial Court rejecting the prayer for partition in respect of lot No. 2 of Ka Schedule cannot be accepted. Even though the lease had not been renewed in. 0. 43 decimals of land should be renewed half and half in favour of plaintiff and defendant No. 1. ( 6 ) THE reasoning given by the trial Court rejecting the prayer for partition in respect of lot No. 2 of Ka Schedule cannot be accepted. Even though the lease had not been renewed in. favour of the parties, if the same is under possession of the parties and is otherwise found to be jointly family property, parties can claim partition. Law is now well-settled that khasmahal lease is partible and transferable and right of renewal is inherent with the lessee. This position is clear from the decision reported in republic of India v. Prafulla Kumar Sarnal and another, which has been subsequently followed in the decision reported in Braja Kishore sahu and others v. Smt. Sailabala Sahu and others. Thus, the conclusion of the trial Court that the property is not partible as the ownership does not vest with the parties and the further conclusion that in the absence of the State relief for partition cannot be granted, are not acceptable. ( 7 ) IT is not disputed that except plaintiff and defendant No. 1, other parties do not claim any right over Lot No. 2 of Ka Schedule property. The question is as to what would be the share of plaintiff and defendant No. 1 in such property. Defendant No. 1-respondent has relied upon the agreement dated 10. 1. 1969 and submitted that as per the said agreement, defendant no. 1 is to get Ac 0. 34 decimals and only the balance Ac. 0. 09 decimals is to be divided between the plaintiff and defendant No. 1. The trial Court has observed that the deed of partition under Ext. 2 having been registered on 11. 1. 1969. the recitals in the agreement dated 10. 1. 1969 would be of no consequence. This reasoning of the trial Court has ignored the provision contained in Section 47 of the REGISTRATION ACT, 1908 that on being registered the document takes effect from the date of execution. Since the deed of partition was executed on 9. 1. 1969 even though it was registered on 11. 1,1969, it took effect from 9. 1. 1969. In the partition, out of the leasehold property. Ac. 0. 43 decimals had fallen to the share of the father of plaintiff and defendant no. Since the deed of partition was executed on 9. 1. 1969 even though it was registered on 11. 1,1969, it took effect from 9. 1. 1969. In the partition, out of the leasehold property. Ac. 0. 43 decimals had fallen to the share of the father of plaintiff and defendant no. 1 and the balance Ac. 0. 27 decimals had fallen to the shares of three other brothers of Gajendra. The agreement dated 10. 1. 1969 being subsequent could have been given effect to if otherwise valid. However, such agreement did not confer any right on defendant no. 1 in presenti at the time of execution of the agreement. The property having fallen to the share of Gajendra, after his death plaintiff as well as defendant No. 1 had right to inherit the same and since other heirs have relinquished their right, the property is to be divided half and half between plaintiff and defendant no. 1. If Gejendra would have transferred the right in respect of the said property in favour of anyone, the same would have been operative. However mere agreement to which plaintiff is not a party would not deprive the plaintiff of his right to inherit the same after death of Gajendra. In the earlier deed of partition of 1965, which has been signed by all the co-sharers including the present plaintiff and defendant No. 1, it has not been provided that present defendant No. 1 would get the lion's share out of the said property though such assertion has been made by defendant No. 1 in his written statement. ( 8 ) DEFENDANT No. 1-respondent No. 1 has failed an application for adducing additional evidence and has prayed that the order passed by the Tahsildar be accepted as additional evidence. The said order appears to be merely a recommendation. The fina! order has not been passed. Even if the said order is accepted as additional evidence. it will not advance the case of defendant No. 1 and as such, it is unnecessary to admit the said document as additional evidence. It is, of course, true that the tahsildar in an order in the year 1984 has recommended that lease in respect of Ac. 0. 34 decimals should be renewed in favour of defendant no. 1 and Ac. 0. It is, of course, true that the tahsildar in an order in the year 1984 has recommended that lease in respect of Ac. 0. 34 decimals should be renewed in favour of defendant no. 1 and Ac. 0. 09 decimals should be renewed in favour of the plaintiff, but merely by such recommendation, the right of inheritance of plaintiff has not been defeated. For the aforesaid reason, I cannot accept the decision of the trial Court relating to Lot No. 2. It is hereby directed that Lot No. 2 should be divided half and half between plaintiff and defendant No. 1 and the income from the said property should be similarly apportioned after adjusting the expenditure. ( 9 ) SO far as Ga Schedule property is concerned, admittedly the said property is acquired in the name of defendant No. 1. The plaintiff claims that he and defendant No. 1 were living jointly and defendant No. 1 being the Karta of the family was in charge of the income from other properties. It is further claimed that there was sufficient nucleus of the joint family property and as such the acquisition in the name of defendant No. 1 should be considered to be joint family property of plaintiff and defendant no. 1. Such contention though attractive on the face of it cannot be accepted in view of the specific recital in Ext. 1, the deed of partition dated 19. 4. 1965, which has been signed by all concerned including plaintiff and defendant no. 1. In the said registered deed of partition, it has been indicated that defendant No. 1 had right over the said property which is now described as Ga Schedule and others had no right. In view of such categorical recital in Ext. 1, the contention now raised by the plaintiff claiming a share in Ga Schedule property cannot be accepted. ( 10 ) THE next contention of the appellant relates to Gha Schedule property. The said property had been purchased in the name of defendant No. 2, a widowed sister of plaintiff and defendant No. 1. It is claimed that the said properties described in Gha Schedule had been purchased benami in the name of defendant no. 2. ( 10 ) THE next contention of the appellant relates to Gha Schedule property. The said property had been purchased in the name of defendant No. 2, a widowed sister of plaintiff and defendant No. 1. It is claimed that the said properties described in Gha Schedule had been purchased benami in the name of defendant no. 2. The trial Court on consideration of evidence on record has come to the conclusion that there was no motive for purchasing the said property benami in the name of defendant No. 2. It has been further found that the properties were under the possession of defendant No. 2. It is, of course, true that the documents relating to title have been produced by the plaintiff. However, as evident from the statement of the plaintiff himself, he was looking after the Settlement operation and as such, the documents were with him. It has to be noticed that defendant No. 1 who would have otherwise benefited if properties under gha Schedule are partitioned, has taken the plea that the properties under Gha Schedule belong to defendant No. 2. The plaintiff while being examined as P. W. 1 has stated :"1 was looking after the Settlement proceeding and i got recorded the name of defendant No. 2 in the Settlement records. . . . I have filed the documents as they were all along with me,. . . "such statement clearly explains the reason for the documents being in the custody of the plaintiff. The materials on record as discussed by the trial Court clearly indicate that consideration money for the transactions had also been paid by defendant No. 2. In the absence of any categorical meterial on record, it is difficult to accept the contention of the plaintiff that the properties under Gha Schedule had been purchased benami in the name of defendant no. 2. The reasonings given by the trial Court on this aspect are acceptable. 1. For the aforesaid reasons, the appeal is allowed in part. While confirming the decision of the trial Court relating to Ga and Gha schedule properties, the decision relating to lot No. 2 of Ka Schedule property is reversed and it is directed that Lot No. 2 should be partitioned in equal proportion between plaintiff and defendant No. 1 and the income from the said property should be similarly apportioned after adjusting the expenditure. There will be no order as to costs. Appeal allowed in part.