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2002 DIGILAW 683 (JHR)

REKHA DEVI v. THRIBHUWAN TIWARY

2002-06-25

GURUSHARAN SHARMA

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Judgment : GURUSHARAN SHARMA, J. ( 1 ) LAKHI Tiwary of village Kulmandih within the district of giridih left behind three sons, namely Prahlad tiwary, Darpan Tiwary and Gourishankar tiwary. Prahlad Tiwary died leaving behind a son Nandkishore Tiwary, Darpan Tiwary left behind his window Gaya Devi and three sons, namely, Nakul Tiwary, Sidheshwar Tiwary and kamdeo Tiwary, Gourishankar Tiwary was married with Adao Devi and got a son tribhuwan Tiwary and two daughters, namely, sushila Devi and Kusum Devi. Kusum left behind two sons Haldhar Tiwary and Motilal tiwary. ( 2 ) A registered deed of partition dated 29. 1. 1983 was executed by Gourishankar tiwary, Nandkishore Tiwary, Nakul Tiwary, sidheshwar, Tiwary and Kamdeo Tiwary, whereby joint family properties were divided into five equal parts and allotted to each of them. ( 3 ) ON 6. 8. 1983 Tribhuwan Tiwary, son of Gourishankar Tiwary filed partition Suit No. 58 of 1983 for partition of his l/6th share in the suit properties detailed in Schedules a, b and c to the plaint. In the said suit Darpan tiwary was impleaded as defendant No. 4 and his three sons were impleaded as defendants 1 to 3. Gourishankar Tiwary was impleaded as defendant No. 5, whereas Nandkishore tiwary was made defendant No. 6. ( 4 ) DURING pendency of the suit gourishankar Tiwary died on 1-2-1984. His name was, therefore, deleted and in his place his widow daughter Sushila and two sons, namely, Haldhar and Motial Tiwary of Kusum, his predeceased daughter who were not on record were substituted. ( 5 ) ACCORDING to the plaintiffs Lakhi Tiwary had acquired lands detailed in Schedule a to the plaint and after his death, Darpan Tiwary being Karta, acquired Schedule b lands out of the joint family properties. Schedule c lands were also acquired out of the usufructs of the joint family property in the name of Gaya Devi, wife of Darpan Tiwary. ( 6 ) GRADUALLY Darpan Tiwary came under the thumb of his sons and he managed to manufacture a document keeping himself outside the document to be prepared and registered on 29. 1. 1983 by practicing fraud and without consulting the plaintiffs, showing division of joint family properties/lands in five shares, three shares to his three sons, defendants 1 to 3 and 1/5th share each to the other co-sharers, namely, Gourishankar Tiwary and nandkishore Tiwary. 1. 1983 by practicing fraud and without consulting the plaintiffs, showing division of joint family properties/lands in five shares, three shares to his three sons, defendants 1 to 3 and 1/5th share each to the other co-sharers, namely, Gourishankar Tiwary and nandkishore Tiwary. However, the said deed of partition was not acted upon. ( 7 ) BEFORE all the three branches were entitled to get l/3rd share each, one branch represented by Darpan Tiwary could not have been allotted 3/5th share. Hence, the said deed was a void document. ( 8 ) DEFENDANTS 1 to 4 and 6 filed joint written statement and contested the suit. According to them, present suit for partition was not maintainable, unless the aforesaid deed of partition dated 29. 1. 1983 was set aside and gaya Devi was impleaded as party. The suit was also bad for non-joinder of several purchasers to whom about 7-8 acres of joint family lands were already sold. ( 9 ) DEFENDANT No. 5 neither appeared nor filed any written statement and subsequently during pendency of the suit, he died on 1. 12. 1984. Other heirs of defendant No. 5 who were not on record were substituted in his place and were transferred as co-plaintiffs. ( 10 ) PLAINTIFFS thereafter got the plaint amended and claimed 1/3rd share. ( 11 ) TRIAL Court decreed the suit and passed preliminary decree for partition of plaintiffs l/3rd share in the suit properties. It was held that deed of partition (Exhibit A) having been brought into existence by playing fraud became void and as such plaintiffs can easily avoid this document without getting any declaration or cancellation. This finding was recorded on issue No. 4 "has ad valorem Court-fee over the amount of Rs. 30,000/- was to be paid in this case or is the fixed Court-fee for partition sufficient". It was held that fixed Court-fee for partition paid by plaintiffs was sufficient. ( 12 ) IT is true that in suit plaintiffs relief was confined to decree for partition of the suit property described in Schedule a to c. to the plaint and no relief was sought for declaration of registered deed of partition dated 29. 1. 1983 (Exhibit A) to be void and in-operative. It was pleaded in the plaint, that aforesaid deed of partition dated 29. 1. 1. 1983 (Exhibit A) to be void and in-operative. It was pleaded in the plaint, that aforesaid deed of partition dated 29. 1. 1983 (Exhibit A) was got executed by practicing fraud, but plaintiffs miserably failed to substantiate the same by adducing any oral or documentary evidence. ( 13 ) THE next important circumstance against the plaintiffs was that neither gourishankar Tiwary during his lifetime nor nandkishore Tiwary till date came forward to challenge the validity of Exhibit A. Nandkishore tiwary, defendant No. 6 rather objected to the plaintiffs prayer for partition along with defendants 1 to 4. ( 14 ) THE aforesaid act of defendant No. 6 shows his satisfaction to whatever was allotted to him by the aforesaid partition deed (Exhibit A) and he has no grievance against the same. ( 15 ) PLAINTIFFS plea is that in their absence and in absence of Darpan Tiwary in the said partition deed (Exhibit A) the same was invalid and not binding. ( 16 ) THERE is no merit in the aforesaid plea because the plaintiffs were to get their shares out of the share of their father Gourishankar tiwary and therefore, their absence in the aforesaid deed of partition (Exhibit A) will not make the said document invalid. ( 17 ) SO far as absence of Darpan Tiwary in the said deed is concerned, it was a matter between him and his sons and he has not made any complaint about it. ( 18 ) DEFENDANTS, on the other hand have brought on record two registered sale deeds executed by defendants 5 and 6 earlier to the aforesaid partition of 1983 whereby out of the joint family property 2. 62 acres land was transferred on 2-8-1976 and 21. 6. 1982 respectively by Exhibits D and D/1. Purpose for bringing these documents on record is to show that besides 5. 98 acres which was allotted to both of them 2. 62 acres land was also adjusted towards their share over and above the lands allotted to them in Exhibit. A. ( 19 ) IN Exhibit A lands allotted in Schedules a and b to the plaint were included and that shows that aforesaid lands were treated to be joint family properties and divided accordingly. 62 acres land was also adjusted towards their share over and above the lands allotted to them in Exhibit. A. ( 19 ) IN Exhibit A lands allotted in Schedules a and b to the plaint were included and that shows that aforesaid lands were treated to be joint family properties and divided accordingly. ( 20 ) I, therefore, hold that the present suit for partition without any relief for setting aside and declaring Exhibit A to be void was not maintainable and the Chapter for partition at the instance of the plaintiffs of the suit properties could not have been re-opened unless the said deed was set aside first. ( 21 ) SO far as the Schedule c property standing in the name of wife of defendant No. 4 is concerned, plaintiffs were not entitled to any relief in the present suit in absence of Gaya devi and without praying for any relief to declare the said transaction to be benami one. ( 22 ) 1, therefore, set aside the impugned judgment and decree and dismiss the suit. This appeal is accordingly allowed, but without costs. Appeal allowed. --- *** --- .