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2000 DIGILAW 55 (PAT)

Bibi Hajra v. Bibi Jantun Nisa

2000-01-13

SHIVA KIRTI SINGH

body2000
Judgment Shiva Kirti Singh, J. 1. This first appeal preferred by defendants Nos. 1, 2 and 8 is directed against the judgment and decree dated 30.11.1977 passed by Sri S.N. Sinha, 1st Additional Subordiante Judge, Motihari in Partition Suit No. 426/1970/167/1976 whereby the trial Court has decreed the suit of the plaintiff-respondent No. 1 for partition of properties described in Schedules I, II and III of the plaint as per share claimed by the plaintiff. 2. In this case, there is no dispute with regard to material part of genealogy as given by the plaintiff or with regard to extent of her share. According to the plaintiff, her grandfather Shah Md. Karim @ Shah Pawaloo had one son Shah Riyazuddin, one daughter Bibi Newazan Bibi Kitaban, defendant No. 1 is widow of Shah Riyazuddin and mother of the plaintiff Jautunissa. Bibi Hajra Defendant No. 2 is the only sister of the plaintiff and defendant No. 8 Syed Anwarul Hassan is husband of Bibi Hajra, According to the plaintiff, Schedule-I properties are properties left by her grandfather Shah Pawaloo which were inherited by his son who got 2/3rd share and by his daughter who got 1/3rd share but the daughter Bibi Newazan died issueless. Although the plaintiff claimed 2/9 share in Schedule 1 properties but upon calculation the trial Court found her share to be 7/18 in Schedule 1. Schedule-II properties exclusively belonged to Syed Riyazuddin in which the plaintiff claimed 1/3 share but the trial Court upon calculation has found her share to be 7/16. With regard to the properties detailed in Schedule-III of the plaint there, is no dispute that the same were purchased by the plaintiff and defendant No. 2 jointly under a sale-deed dated 22.11.1944 wherein the plaintiff claimed 1/2 as her share and the same has been found correct by the trial Court. 3. The plaintiff claimed that the properties mentioned in the schedules are still joint and she is not getting her due share in spite of request for amicable partition and hence, the suit. 4. Defendant Nos. 1 and 2 filed a written statement wherein they denied unity of title and unity of possession between the parties in respect of suit properties. The properties detailed in Schedules I and II are admitted to be properties belonging to Md. Karim @ Shah Pawaloo and his son respectively. 4. Defendant Nos. 1 and 2 filed a written statement wherein they denied unity of title and unity of possession between the parties in respect of suit properties. The properties detailed in Schedules I and II are admitted to be properties belonging to Md. Karim @ Shah Pawaloo and his son respectively. Schedule III properties are also admitted to be joint purchase of plaintiff and defendant No. 2 and only their description have been corrected in the written statement. The legal share of the plaintiff in suit properties has not been challenged but it has been asserted that the plaintiff has no title over the said properties. According to these defendants, the properties belonging to Shah Karim and Shah Riyazuddin had already been privately partitioned between the parties on 1.1.1954 and the sister of Shah Riyazuddin Bibi Newazan executed a deed of gift of her separate share in favour of defendant No. 2 by a registered document and put defendant No. 2 in possession over her properties. The details of the alleged gifted properties have been given in Schedule-I of the written statement. With regard to the share of the plaintiff, it has been alleged that she sold her share on 31.8.1970 through three sale-deeds to Syed Anwarul Hassan, defendant No. 8 and husband of defendant No. 2 and as a purchaser Anwarul Hassan is in possession of the same. 5. It appears from the record of the case that Anwarul Hassan opted and prayed to be a party in the suit at a very late stage on 6.10.1977, and he filed his written statement on 10.10.1977 when the evidence on behalf of the plaintiff was already over. From the order dated 8.10.1977 it appears that the Court treated defendant No. 8 to be a purchaser during the pendency of the suit and, therefore, declined to hear arguments on question of court fee with regard to the properties claimed by defendant No. 8 and on that basis decided to treat the suit as a pure suit for partition. However, from the three sale-deeds filed on behalf of the defendant No. 8 which are Ext. However, from the three sale-deeds filed on behalf of the defendant No. 8 which are Ext. C series, it appears that the sale deeds were executed on 31.8.1970, just prior to filing of the suit and by resorting to provision under Sec. 23 of the Registration Act, the sale-deeds were got cornpulsorily registered on 8.9.1977, just before Defendant No. 8 chose to file an application for being added as a party defendant on 23.9.1977. 6. The trial Court disbelieved the story of partition of the suit properties in 1954 as raised by the defendants. Due to non-production of the alleged registered deed of gift by Bibi Newazan in favour of Bibi Hajra, defendant No. 2, the trial Court refused to accept the case of the Defendants that the properties covered by the alleged deed of gift are not available for partition. The trial Court further held that as per evidence of defendants witness No. 7 who was also the scribe of the three sale-deeds, Ext. 3 series, the deeds were executed on 21.8.1970 and as claimed by the defendant No. 8 they were presented for compulsory registration on 30.12.1970 and hence, the registration of the said sale-deeds was without jurisdiction as the presentation was beyond the period of four months prescribed by Sec. 23 of the Registration Act. The trial Court further noticed on the basis of evidence on record that no consideration money for the sale-deeds in question was paid to the plaintiff. For these reasons, the trial Court held that the plaintiff was not bound by the sale-deeds. However, treating this suit to be a simple suit of partition, the trial Court left open the title and otherwise of the vendee on the strength of Ext. C series. 7. For these reasons, the trial Court held that the plaintiff was not bound by the sale-deeds. However, treating this suit to be a simple suit of partition, the trial Court left open the title and otherwise of the vendee on the strength of Ext. C series. 7. Learned Counsel for the appellants did not challenge the judgment of the trial Court with regard to other findings but strongly pleaded that (i) the trial Court ought to have believed the story of execution of registered gift-deed by Bibi Newazan in favour of Bibi Hazra defendant No. 2 in spite of defendants not having produced the alleged registered gift-deed and (ii) the trial Court ought to have accepted the three sale-deeds dated 31.8.1970 to be prior to institution of the suit and valid documents as a result whereof the plaintiff had already sold her share of lands in favour of defendant No. 8 and, therefore, those lands were no longer available for partition in the suit. 8. The first plea advanced on behalf of the appellants as mentioned above cannot be accepted for the reasons that the defendants failed to produce the alleged registered gift-deed by Bibi Newazan and when as per defendants there exists a registered gift-deed then the story of such gift cannot be accepted only on the basis of oral evidence. No fault can be found with findings of the trial Court in his regard. 9. So far as the second plea of the appellants is concerned, a perusal of Ext. C series shows that the three sale-deeds were prima facie executed on 31.8.1970 prior to institution of the suit and the reasoning of the trial Court that since they were presented for registration on 30.12.1970 hence, they will be treated to have been executed after institution of the suit cannot be accepted. For the purpose in question, the date of presentation for registration of the sale-deeds has no relevance in law and after registration of the documents, the sale will relate back to the date of execution. Now, it has to be seen as to what shall be the effect of this finding upon the case of the parties. The trial Court has noticed several lacuna with regard to sale of valuable lands covered by Ext. Now, it has to be seen as to what shall be the effect of this finding upon the case of the parties. The trial Court has noticed several lacuna with regard to sale of valuable lands covered by Ext. C series the three sale-deeds, including want of consideration as well as delay in presentation of the documents for registration beyond the period permitted by Sec. 23 of the Registration Act. However, keeping in view the nature of the suit, the Court below did not hold the documents void and inoperative but preferred to keep that question open. On behalf of the appellants, it was submitted that since the plaintiff did not challenge the three sale-deeds formally and did not seek any relief to get them set aside in this suit after paying ad valorem, court fee, hence, the three sale-deeds ought to have been accepted as valid documents of sale. It was further contended on the basis of evidence of D.W. 7, the scribe, that the Court below has misread the evidence of D.W. 7, who has not deposed regard the date of execution to be 21.8.1970 but has simply stated that in the sale-deed 21.8.1970 is mentioned as the date of Kitabat. This appears to be the factual position. There is no further material in the evidence of D.W. 7 lo find out as to what he meant by the term Kitabat. A perusal of Ext. C series shows that the stamps were purchased on 21.8.1970 and execution was prima facie effected on 31.8.1970. In such circumstances, in my view, it will hot. be safe to conclude only on the basis of aforesaid evidence of D.W, 7 that the sale-deeds-Ext. C series were executed on 21.8.1970 and, therefore, presentation on 30.12.1970 was beyond the period of four months prescribed for presentation of such documents by Sec. 23 of the Registration Act. So far as non-payment of consideration money to the plaintiff is concerned, as per evidence of defendant No. 8 D.W. 1, he had paid the consideration money for the three sale-deeds to Kitaban defendant No. 1 because, according to him, she was (he head of the family. According to Bibi Kitaban defendant No. 1 D.W. 1, she and plaintiff Jantunnissa had executed the three sale-deeds for Rs. 6,000.00 in favour of defendant No. 8 and money was received. According to Bibi Kitaban defendant No. 1 D.W. 1, she and plaintiff Jantunnissa had executed the three sale-deeds for Rs. 6,000.00 in favour of defendant No. 8 and money was received. However, after some cross-examination, D.W. 1 has refused further cross-examination and on that account, her evidence has been rightly kept out of consideration by the trial Court. As against this P.W. 1, the husband of the plaintiff and P.W. 3 the plaintiff have claimed that the properties were never partitioned between the parties and the plaintiff has not. executed any document of sale as alleged and any such sale-deed is forged. According to the plaintiff, she has not received any money from her mother and she had no knowledge about compulsory registration of sale-deeds in question. 10. Thu Section on evidence it appears that the plaintiff as well as her husband have clearly denied the existence or execution of any sale-deed as claimed by the defendants. In face of such clear denial, it was for the defendants to prove that, the sale-deeds are genuine, for consideration and have been duly executed by the plaintiff. No attempt has been made to compare the thumb impression of the plaintiff with that on the sale-deeds. The evidence with regard to the payment of consideration to the plaintiff also falls for short in proving passing of any consideration. 11. In spite of aforesaid lacuna in the claim of defendant No. 8 on the basis of Ext. C series, the trial Court did not record any finding regarding genuineness or otherwise of the three sale-deeds and left the matter open on the ground that the suit, is a simple suit for partition and there is no necessity to decide this complicated question in the present suit. Learned Counsel for the respondents strongly contended that on account of its findings that the presentation of Ext. C series for registration was beyond the period prescribed by Sec. 23 of the Registration Act, the trial Court should have held the three documents of sale to be void. For this proposition, he placed reliance upon a judgment of the Privy Council in the case of Ma Pwa May and Anr. V/s. Chettiar Firm reported in AIR 1929 P.C. 279, and some other judgments. For this proposition, he placed reliance upon a judgment of the Privy Council in the case of Ma Pwa May and Anr. V/s. Chettiar Firm reported in AIR 1929 P.C. 279, and some other judgments. There is no quarrel with the aforesaid proposition but keeping in view the earlier discussion and finding given by me with regard to the evidence of D.W. 7, it is not possible to hold that the sale-deeds were executed on 21.8.1970 and not on 31.8.1970 as appears from the document itself. Learned Counsel for the respondents further suggested that a close look at the date of execution in Ext. C series would show that there has been some interpolation in the date of execution and 21 has been changed into 31. A look at the documents does not convince me to take such a view. Hence, in my view, the documents cannot be declared in this case to be void on account of alleged violation of Sec. 23 of the Registration Act. 12. On behalf of the appellants, a strong objection was raised that the respondents cannot be permitted to challenge any findings of the trial Court in absence of any cross-objection as required by Order XLI, Rule 22 of the C.P.C. According to the appellants, the decision of the trial Court to leave the question of title of defendant No. 8 on the basis of Ext. C series open for the future amounts to a finding against the case of the plaintiff and hence, a cross-objection was necessary to be filed to enable the respondents to assail such a finding. On the other hand, learned Counsel for the respondents relied upon a judgment of this Court in the case of Sheo Shankar Prasad V/s. Union of India AIR 1984 Pat 348 , to submit that cross-objection is not necessary to assail a finding on which decree is not founded. He further relied upon another judgment of this Court in the case of Naresh Ahir and Ors. V/s. Most Barhiya -- , to submit that while supporting the impugned decree a respondent has the liberty to assail a finding against him without any requirement to file any cross-objection or appeal. 13. He further relied upon another judgment of this Court in the case of Naresh Ahir and Ors. V/s. Most Barhiya -- , to submit that while supporting the impugned decree a respondent has the liberty to assail a finding against him without any requirement to file any cross-objection or appeal. 13. Prima fade the said submissions on behalf of the respondents appear to be attractive and supported by the aforesaid two decisions of this Court but the real question, in spite of aforesaid precedents, is to find out whether the respondent is seeking to assail a finding on which decree is founded or not and further whether he is merely supporting the decree or wants further addition in the decree with regard to a relief which was argued before the trial Court but not granted to the satisfaction of the respondent-plaintiff. A decree is merely a formal expression of adjudication which, so far as the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The impugned judgment in this case clearly shows that for some reasons the trial Court declined to uphold the claim of the plaintiff that the three sale-deeds vide Ext. C series are forged or void and inoperative. Because of such a nature of adjudication by the trial Court, simply a decree for partition was granted in favour of the plaintiff without any declaration as regards title of defendant No. 8 on the basis of Ext. C series. In such circumstances, in my view, the respondent-plaintiff by advancing arguments against Ext. C series does not only support the decree but wants further addition by way of a further declaration from this Court, that Ext. C series are void and inoperative although such a relief was not granted by the trial Court. In such a situation, in my view, if plaintiff-respondent wanted such modification in the decree he had to file a cross-objection or a cross-appeal and in absence of the same, it will not be proper to allow the respondent to assail whatever finding has been ultimately recorded by the trial Court with regard to the title of defendant No. 8 on the basis of Ext. C series. C series. In this view of the matter, in my view, the aforesaid precedents of this Court do not help the respondent and it will not be proper for this Court to hold anything further with regard to the Ext. C series beyond what, has been held by the trial Court. Of course, at the instance of the appellants, I have examined the findings of the trial Court with regard to Ext. C series as discussed above and since there is no material to differ from the findings of the trial Court at least with regard to non-payment of consideration money to the plaintiff and further since, I have held that the defendants in this suit have failed to prove Ext. C series to be validly executed by the plaintiff who has denied such execution, it will not. be possible to grant any relief to the appellants as it is not possible to hold that the properties covered by the three sale-deeds vide Ext. C series are not available for partition at the instance of the plaintiff. 14. There is one another aspect in this appeal which requires consideration. According to the plaintiff, the suit properties are still joint and according to the defendants, they were partitioned on 1.1.1954 and thereafter sold by the plaintiff to defendant No. 8. After considering all the lelevant documents, the trial Court in paragraph 9 of its judgment disbelieved the story of partition in the year 1954. This finding has not been assailed by learned Counsel for the appellants and in that view of the matter also, further story of sale of the divided share by the plaintiff does not inspire confidence. 15. For the aforesaid reasons, I find no merit in this appeal and the same is dismissed with costs against the appellants.