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2001 DIGILAW 1017 (PAT)

Hardeo Yadav v. Dinanath Yadav

2001-11-07

NAGENDRA RAI, P.N.YADAV

body2001
Judgment 1. Letters Patent Appeal No. 471 of 2000 filed on behalf of Hardeo Yadav and others and Letters Patent Appeal no. 569 of 2000 filed on behalf of Dinanath Yadav and others arise out of one and the same judgment dated 21-1-2000 passed by the learned single Judge in First Appeal No. 562 of 1993 whereby and whereunder he decreed Title Suit No. 128 of 1971 in part setting aside the judgment and order of dismissal of the suit recorded by Subordinate Judge II. Danapur and as identical questions of law and facts are involved in both the appeals they have been heard together and are going to be disposed of by this common order. 2. Dinanath Yadav and others in the capacity of the plaintiffs brought Title Suit No. 128 of 1971 in the Court of the Subordinate Judge II, Danapur against defendants Kusum Devi and others seeking relief for a decree of partition and allotment of half share to them in the joint family property morefully described in Schedule I and II of the plaint and also for carving out a separate Takhta for them. 3. It would be relevant and convenient to reproduce, in brief, the facts of the case. According to the plaintiffs Tulsi Yadav and Gopi Yadav were the sons of one Kauri Yadav of village Sahar Rampur under P. S. Naubatpur in the district of Patna. Tulsi Yadav died leaving behind his son Faujdar Yadav. Gopi Yadav died leaving behind his son Ramlal. Faujdar subsequently died leaving behind his sons, namely, Hawaldar (plaintiff No. 1), Radha (plaintiff No. 2) and Bhunasi (plaintiff No. 3) who also died issueless in the year 1972. Hawaldar had three sons, namely, Dinanath (plaintiff No. 4), Sidh Nath (plaintiff No. 5) and Ganga Sagar (plaintiff No. 6). Dinanath had two sons, Satyadeo (plaintiff No. 8) and Satyender (plaintiff No. 9). On the other hand Ramlal had three sons, Sukhlal (defendant No. 1) Sarjug (defendant No. 2) and Laldev (defendant No. 3). Sukhlal was issueless. Sarjug had two sons, namely, Dipnarayan (defendant No. 4) and Tandeo (defendant No. 5). Defendant No. 6 is the son of Deep Narain (defendant No. 4). Defendant No. 3 Laldev had four sons, namely, Prabhansh (defendant No. 1), Vijaya (defendant No. 8), Brajendar (defendant No. 9) and Nepali (defendant No. 10). Sukhlal was issueless. Sarjug had two sons, namely, Dipnarayan (defendant No. 4) and Tandeo (defendant No. 5). Defendant No. 6 is the son of Deep Narain (defendant No. 4). Defendant No. 3 Laldev had four sons, namely, Prabhansh (defendant No. 1), Vijaya (defendant No. 8), Brajendar (defendant No. 9) and Nepali (defendant No. 10). Later on a baby son of Prabhansh was also added as defendant No. 11. 4. Further case of the plaintiffs is that the two brothers Tulsi Yadav and Gopi Yadav constituted a joint Mitakshara Hindu family. Obviously the plaintiffs are the descendents of Tulsi Yadav while the defendants are the descendents of Gopi Yadav and they all happened to be the members of a joint family. Sukhlal being the eldest member in the family had been working as Karta since the death of his father, who was Karta during his life time. The joint family owned and possessed canal irrigated cultivable land and the members of the family used to get maximum out turn from the fertile cultivable land and the family acquired some land from the income earned from agriculture. The entire income earned from cultivation was retained by Sukhlal (defendant No. 1) as Manager and Karta of the family and all the papers in respect of the joint family properties were in his possession and he used to invest money wherever he liked. In course of time it transpired to the plaintiffs that a sum of Rs. 30,000.00 (Rupees thirty thousand) was accumulated from earnings of agriculture and the same was retained by defendant No. 1. It was pleaded that as the entire properly was acquired by the joint family, the plaintiffs also got their share therein and they were entitled to get half share in the ancestral property described in Schedule I as well as acquired property described in Schedule II of the plaint. It was alleged that the defendants were bent upon usurping and misappropriating the joint family properties in total disregard of the interest of the plaintiffs. Under the circumstance, the plaintiffs demanded partition but the defendants were not ready and willing to effect partition and they ultimately on 21-6-1971 refused to partition the joint family properties and to give any share to the plaintiffs and hence the suit. 5. The defendants resisted the suit by filing two sets of written statements, one on behalf of defendant Nos. 5. The defendants resisted the suit by filing two sets of written statements, one on behalf of defendant Nos. 3 and 7 and the other on behalf of defendant Nos. 5, 9 and 10 contending, inter alia, that Tulsi Yadav and Gopi Yadav were members of the joint Hindu Mitakshara family and they were jointly recorded in the survey record of rights and they had about six acres of land jointly recorded in their names in the record of rights and they were shown to have equal share and after the death of Tulsi Yadav his son Faujdar Yadav came in possession of the joint family properties with Gopi Yadav. It was contended that the joint family of Gopi Yadav and his son Ramlal and nephew Faujdar acquired about 1-30 acres of land from the earnings of joint family properties and Gopi Yadav died a few years after the death of Tulsi Yadav in the state of jointness and after the death of Ram Lal, his sons Sukhlal, Saryug and Laddu and cousin Faujdar, all came in possession of joint family property by rule of survivorship, however, after the death of Ram Lal, there was partition by metes and bounds between the sons of Ram Lal and their cousins, the plaintiffs over 60 years ago and thereafter Faujdar Yadav got his separate share and exclusive possession over the land of his share. It was stated that since the partition that took place 60 years ago, the parties had been coming in separate possession over their respective shares in landed as well as other properties and one branch had nothing to do with the business of other branch and the property was separately acquired from their funds. The defendants asserted that Sukhlal had good earnings from his service and he acquired several acres of land from his earnings. Saryug was serving as a Munim in a grain gola at Arrah and he also acquired several acres of land out of his own earnings and again Laddu was said to have purchased four decimal of land in plot No. 1203 out of his own fund and the plaintiffs had nothing to do with the landed property acquired by three brothers and their sons coming of the branch of Ram Lal. Sukhlal (defendant No. 1) was issueless and he gifted about 6.24 acres of land of his share to his brother Laddu by executing a registered deed of gift dated 22-8-1971 and Laddu came in possession of the same after the death of Sukhlal by rule of survivorship as well as by virtue of being his donee. It was further stated that the plaintiffs had also their joint family properties and out of their joint family income they also made acquisition of properties separately and the properties acquired by the defendants were separate properties and the plaintiffs had no right, title, interest and possession over the same. 6. It was also pleaded that the plaintiffs had no cause of action for the suit; that the suit was barred by limitation, estoppel and waiver; that the suit property was under valued and no sufficient Court-fee was paid thereon and that the suit was bad for non-joinder of necessary parties. 7. On the basis of the pleadings of the parties, quite a good number of issues were framed for determination of the suit. The trial Court decided almost all the issues against the plaintiffs and in favour of defendants and it dismissed the suit vide the judgment dated 9-7-1993 and the decree dated 23-7-1993. The learned single Judge vide the impugned judgment and order dated 21-1-2000 found and held that the plaintiffs were entitled to get half share in Schedule I property while the property described in Schedule II was held to be the self-acquired property of the defendants and he accordingly decreed the suit in part in favour of the plaintiffs. 8. Aggrieved by the judgment and order recorded by the learned single Judge the plaintiffs-appellants of First Judge the plaintiffs appellants of First Appeal No. 562 of 1993 preferred L.P.A. No. 569 of 2000 contending that the Schedule II property was also joint property inasmuch as that was acquired with joint family fund and they were entitled to get share therein while the defendants-respondents of F.A. No. 562 of 1993 filed L.P.A. No. 471 of 2000 contending that the learned single Judge wrongly decreed the suit in part allowing share to plaintiffs even in the landed property which was their self-acquired property which the plaintiffs had nothing to do with and they had no right, title, interest and possession over the same. 9. 9. The plaintiffs case was that both the parties were joint and no partition of joint family property by metes and bounds was ever effected and there still existed unity of title and possession. On the other hand the case set-up by the defendants was that the joint family of the parties had disrupted inasmuch as the partition of joint family property by metes and bounds took place after the death of Ram Lal between his three sons and their cousins about 60 years ago and since then the parties had been coming in separate possession of the land falling to their share and since then one branch had nothing to do with the business of the other branch and both the parties acquired land with their separate funds. Sukhlal and Saryug were said to have made acquisition of land with their earnings from service. 10. Both the parties adduced evidence documentary as well as oral in support of their respective cases. The plaintiffs examined P.W. 1 Ram Bhagal Bhagat, P.W. 2 Awdhesh Singh, P.W. 3 Mahavir Paswan, P.W. 4 Kedar Nath Dubey, P.W. 5 Deo Sharan Ram. P.W. 6 Hari Charan Bhagat, P.W. 7 Mahesha Nand Dubey, P.W. 8 Dhunmun Bhagat, P.W. 9 Sidhnath Yadav, one of the plaintiffs, P.W. 10 Dina Nath Yadav, Plaintiff No. 4 and P.W. 11 Mahendra Paswan. All the aforesaid witnesses stated that both the parties were joint in estate, mess and worship and no partition of their joint family property ever took place. P.Ws. 9 and 10, who were plaintiffs further stated that there was sufficient fund accumulated from the earning as of the joint family property and out of that fund Sukhlal Yadav purchased landed property in the names of different members of the family including himself. They denied that Saryug was in service and he had separate earnings. The deed of gift executed by Sukhlal in favour of Laddu (defendant No. 3) was illegal as it was created during the pendency of the suit. 11. On behalf of the defendants D.W. 1 Ghamandi Ram came forward to say that the branches of Faujdar and Ram Lal had partitioned their joint family property about 25-30 years ago whereas the case of the defendants was that partition was effected 60 years ago. 11. On behalf of the defendants D.W. 1 Ghamandi Ram came forward to say that the branches of Faujdar and Ram Lal had partitioned their joint family property about 25-30 years ago whereas the case of the defendants was that partition was effected 60 years ago. D.W. 2 Ran Narain Singh also supported the factum of partition but in view of his age disclosed by him and the attainment of his Hosh at the age of 15 years, it is to be held that the alleged partition did not take place in his Hosh. D.W. 3 Sukhi Chand Bhagat, D.W. 4 Jagdish Das, D.W. 5 Sajiwan Ravidas also spoke of previous partition. The witnesses referred to above do not belong to the family of the plaintiffs and defendants. They are outsiders. They do not seem to be competent witnesses. They are not expected to have any concern with the affairs of the parties to the suit. Moreover, they did not stand the test of cross-examination. Their evidence does not inspire confidence. The only witness belonging to the family of the parties to the suit is D.W. 18 Hardeo Yadav who was aged 46 years in 1992. He admitted partition was effected before he attained Hosh. Thus obviously he did not witness partition by metes and bounds being effected. His statements that after partition both the parties acquired property with their separate earnings, that Saryug defendant No. 2 worked in grain gola at Arrah and he had good earnings cannot be accepted for, he could not give details regarding emoluments Saryug used to receive in lieu of service rendered by him. Though the defendants case was that Sukhlal was in service at Bihta, no evidence at all was adduced to show what was his earnings from service. None of the witnesses including D.W. 18 spoke of his service and earnings from service. 12. Documents were also brought on records on behalf of both the parties and they were marked Exhibits. The plaintiffs filed some rent receipts to show that they were granted jointly. The defendants produced certain rent receipts, chowkidari receipts and canal purchas to show that they were granted separately. However, the defendants admitted that Jamabandi had not been split up and it still stood joint. The rent receipts, chowkidari receipts and canal purchas can by no stretch of imagination establish partition. 13. The defendants produced certain rent receipts, chowkidari receipts and canal purchas to show that they were granted separately. However, the defendants admitted that Jamabandi had not been split up and it still stood joint. The rent receipts, chowkidari receipts and canal purchas can by no stretch of imagination establish partition. 13. From the materials available on records it would transpire that there was considerable landed property and hence sufficient nucleus in the family. The plaintiffs claimed it all to be joint family property whereas the defendants defence was that the joint family had already disrupted inasmuch as partition by metes and bound had been effected long ago. The evidence adduced on behalf of the defendants could not establish that the partition by metes and bounds had been effected. However, it appears that the parties for the sake of convenience were living and pursuing their business separately and in the process they acquired some property separately. 14. The facts, circumstances and evidence available on records probabilised that both the parties were joint and the landed property was acquired out of the income earned from their joint family though acquisition was in the names of different members of the joint family. Besides, there will also be presumption of jointness of the family as the parties are governed by Mitakshara School of Hindu Law, though, of course, presumption of jointness gets weaker and weaker with the passage of time. Presumption of jointness between two brothers will be greater than the presumption of jointness between cousins. In the case at hand both the parties are descendants of two brothers, namely, Tulsi and Gopi and the suit has been brought by the grand sons of Tulsi against grand sons of Gopi and as such presumption of jointness is a bit weaker but it gets strengthened on account of failure of the defendants to establish disruption of family and partition by metes and bounds. However, it seems quite probable and natural that the parties for the sake of convenience and by way of family arrangement were carrying on their separate business and to some extent there was division of property and the parties were cultivating land and running mess separately according to their convenience but all that cannot give rise to an inference that partition by metes and bounds had been effected. 15. 15. As regards acquisition of property it may be stated that even in joint family which has not been disrupted by partition by metes and bounds the members of the family may make separate acquisition of certain property to some extent. In the present case Sukhlal and Saryug were in private service and it is just possible that they might have acquired separately some movable properties as described in Schedule II of the plaint. It was for the defendants to prove that they had sufficient nucleus and acquisition of immovable property was made by them out of their own income. However, the evidence adduced on their behalf did not prove the factum regarding existence of nucleus. In that view of the matter, no part of the landed property described in Schedule I of the plaint can be said to have been acquired by any member of the joint family separately out of separate fund of such member rather Schedule I property must be said to be ancestral property of the family and the acquired portion of that property must be said to have been acquired with joint family fund. It is, therefore, to be held that there is unity of title and possession in respect of Schedule I property between the parties and no partition thereof by metes and bounds has been effected and that may be subjected to partition between the parties. As regards movable property described in Schedule II it is to be held that it was separate and exclusive property of the defendants and it cannot be subjected to partition. 16. In view of what has been stated and observed above, it is to be held that the plaintiffs are entitled to get half share only in Schedule I property and not in Schedule II property.The first appeal was rightly decided by the learned single Judge. 17. In the result, there is no merit in any of the two appeals which must fail. Accordingly, both the appeals are dismissed. There will be no order as to cost. Appeals dismissed.