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2012 DIGILAW 930 (PAT)

Prem Kumar Choudhary v. Kailash Chaudhary

2012-07-05

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned senior counsel, Mr. Shivnandan Rai appearing on behalf of the appellant and the learned counsel, Mr. Sri Nandan Prasad Singh appearing on behalf of the respondent. The plaintiff-appellant appellant filed title suit No.4 of 1988 praying for partition of Schedule II land to the extent of half share and also for declaration that gift deeds dated 24.4.1973 and 21.10.1974 are not operative and are void documents. The trial Court after considering the materials available on record dismissed the plaintiff’s suit for partition holding that there was partition between the parties and so far gift deeds are concerned those are not relinquishment deed in favour of Khyali Chaudhary and Gopal Chaudhary. The trial Court also recorded a finding that Tanuk Lal being the legal heir and title holder and in possession over the properties mentioned in the deed of gift was competent to make gift deed of those property. On appeal being title appeal No.1 of 2006, the lower appellate Court dismissed the appeal, therefore, the appellant shall file the present second appeal. 2. The learned senior counsel appearing on behalf of the appellant raised only one ground that both the parties made out case that the registered partition deed of the year 1922 was never acted upon but then both the Courts below have held that in fact there was partition between the parties. The ancestor of the parties had executed sale deeds which are ext.3 series wherein they made categorical statement that the parties are joint but .both the Courts below did not consider ext.3 series. The Courts below have relied upon 6 series which are sale deed executed by other persons wherein the plaintiff are not parties and, therefore, the Courts below could not have relied upon the recital made in the sale deeds to the effect that there was partition between the parties. 3. The learned counsel appearing on behalf of the respondent submitted that concurrently both the Courts below have recorded a finding that there was partition between the parties and, therefore, this is a finding of fact based on appreciation of evidence. In such circumstances, the finding of fact can be interfered with in second appeal as the points raised by the appellant relates to the question of fact. 4. Admittedly, there is a registered deed of partition of the year 1922. In such circumstances, the finding of fact can be interfered with in second appeal as the points raised by the appellant relates to the question of fact. 4. Admittedly, there is a registered deed of partition of the year 1922. According to the plaintiff, the said registered partition deed of the year 1922 was not acted upon. Aarti Chaudhary had no share but she was also granted some lands for her maintenance. The lower appellate Court considered the recital made in the registered partition deed, i.e., ext. ‘g’ and found that in the deed itself it is recited that the parties separated in mess and business and there was severance of joint status and one party to the deeds had no manner or concern and liability with the other. Now, therefore, even if the submission of the learned counsel for the appellant is accepted that the deeds was not acted upon but then there is no case made out by the plaintiff that the severance status of coparceners ceased to exist. On the other hand, from perusal of the lower appellate Court Judgment, it appears that it is admitted fact that the parties are separately cultivating their lands according to their convenience. 5. In A.I.R. 1980 SC 1173 Kalyani Vs. Narayanan, the Apex Court has held that to constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What from such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such declaration. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such declaration. Partition is a word of technical import in Hindu Law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense, all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. 6. Therefore, in view of the above settled proposition of law laid down by the Apex Court, there was severance of joint status as far back as in the year 1922. So far the submission that the deed was not acted upon is concerned, it can only be said that the property which were allotted to any of the party did not come in their possession. In other words, so far share and allotment is concerned, it was not acted upon but then the severance of status continued from 1922. 7. From perusal of the lower appellate Court Judgment, it appears that Ext.D/6 is sale deed executed by Shivshanker, plaintiff himself which is dated 25th February, 1980 wherein he categorically admitted that there was partition between the parties and, therefore, he sold the properties which has been considered by the lower appellate Court. It may be mentioned here that this is the admission of the plaintiff himself regarding previous partition. It is well settled that admission is the best evidence unless it is satisfactorily explained by the person making the admission. Here, there is no explanation. The lower appellate Court also considered the other sale deeds which have been marked as ext. ‘D’ series and in all these ext. ‘D’ series, there is recital that there was partition between the parties. Here, there is no explanation. The lower appellate Court also considered the other sale deeds which have been marked as ext. ‘D’ series and in all these ext. ‘D’ series, there is recital that there was partition between the parties. The other aspect of the matter is that the parties were dealing with the properties since long exclusively. Separate mess and residence for more than half century is admitted by the plaintiffs themselves. No doubt, separation in mess and residence and dealing of the property separately is not a ground on the basis of which it can be recorded that there was partition but cumulative effect of the same, i.e., separation in mess residence, separate dealings of the property, separate cultivation of the property, since long there will be presumption that there had already been partition between the parties as has been held by the Apex Court in the case of Bhagwan Dayal Vs. Reoti Devi A.I.R. 1962 (SC) 287. This decision of the Apex Court has been followed by a Division Bench of this Court in A.I.R. 1971 Patna 215 and subsequently the same had been reiterated by this Court in A.I.R. 1991 Patna page 1, page 95 and page 276. Therefore, consistently the view of the Apex Court and the view of this High Court is that if there is separate mess residence and separate dealings of the properties for a considerable long period, the presumption will be that there had already been partition between the parties. Moreover, the appellate Court has considered all the evidences and materials available on record and came to the conclusion that there had already been partition. This finding is a pure finding of fact. 8. So far the submission of the learned counsel for the appellant that the ext.‘3’ series has not been considered is concerned, it may be mentioned here that as has been admitted by the appellant, the said deeds were up to the year 1944 only whereas this suit has been filed in the year 1988. 9. In view of the above facts and circumstances of the case, I find no force in the ground raised of the learned counsel for the appellant. In my opinion, therefore, no substantial question is involved in this second appeal. Accordingly, this second appeal is dismissed at the admission stage itself.