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2013 DIGILAW 339 (PAT)

Kripa Devi v. Poonam Devi

2013-03-12

MUNGESHWAR SAHOO

body2013
CAV JUDGMENT Mungeshwar Sahoo, J. 1. The plaintiffs have filed this first appeal against the judgment and decree dated 26.2.1981 passed by the learned 5th Additional Subordinate Judge, Motihari in Partition Suit No. 213 of 1971/ 27 of 1980, whereby the learned trial court dismissed the plaintiffs’ suit for partition. 2. The plaintiffs appellants filed the aforesaid partition suit claiming share to the extent of 3/4th in the suit land. According to the plaintiffs the common ancestor was one Chanarma Rai who had four sons namely Rawal Rai, Bhaiyaram Rai, Rajaram Rai and Lal Bahadur Rai. The plaintiffs and defendants 2nd set represent the branch of Bhaiyaram Ram. The defendant 1st set are the descendants of Rajaram Rai. Bhaiyaram Rai had four sons namely Dhanukhdhari Rai, Dhaneshwar Rai, Sheodhari Rai and Kamla Rai. He had also two daughters namely Most. Dharohara Kuer and Ramrati Kuer. Dharohara Kuer had a son who died leaving behind a widow and two sons, the plaintiffs. Kamala Rai died in the year 1970 issueless. Sheodhari Rai died in the year 1952 leaving behind a daughter defendant No.9. Dhaneshwar died in the year 1946 leaving behind his widow Hika Kuer and two daughters namely Most. Swari Devi and Kumari Devi. Kumari Devi died leaving behind a son plaintiff No.3. The plaintiff Nos. 4 to 6 are the sons of defendant No.8. Dhanukhdhari Rai died in the year 1944 leaving behind a widow Pataso Kuer who in tern died in the year 1955. The subject matter of the partition suit is the land of Bhaiyaram Rai. After the death of Bhaiyaram Rai his four sons separated about 50 years back i.e. either in the year 1930 or in the year 1931 and started cultivating the lands according to their convenience. There was no partition by metes and bounds. The widow of Dhanukhdhari, Dhaneshwar and Sheodhari transferred about 1.5 bigha of their lands to defendants 3rd set. On 8.12.1951 Sheodhari Rai, Most. Pataso and widow of Dhaneshwar namely Hika Kuer executed four deeds of gift in favour of the plaintiffs. The plaintiffs came in possession over the gifted land. Kamla Rai transferred his four ana share to the defendant 1st set. This transfer caused inconvenience therefore, the plaintiffs demanded partition, which was refused. Hence the suit was filed. 3. The contesting defendants No.1 filed separate written statement. Defendant Nos. 2 to 7 also filed contesting written statement. The plaintiffs came in possession over the gifted land. Kamla Rai transferred his four ana share to the defendant 1st set. This transfer caused inconvenience therefore, the plaintiffs demanded partition, which was refused. Hence the suit was filed. 3. The contesting defendants No.1 filed separate written statement. Defendant Nos. 2 to 7 also filed contesting written statement. The other defendants filed supporting written statement. The defence of the defendant No.1 and defendant Nos. 2 to 7 is in the same line. According to them the main defence is that Dhaneshwar Rai died before Revisional Survey in the year 1917. Dhanukhdhari died in February 1936. The plot Nos. 975 and 976 in fact belonged to the branch of Rajaram Rai and are in possession of Mahavir Ram grandson of Rajaram Rai. Bhaiyaram Rai died in the state of jointness that is his three sons. The properties of Bhaiyaram Rai came ultimately in possession of his two sons namely Sheodhari Rai and Kamla Rai who survived the other brothers. The three sale deeds executed by Sheodhari Rai in favour of defendant 3rd set are Farzi sale deed and never came in operation. Sheodhari could not execute any valid gift deed in favour of the plaintiffs as he was never a sole surviving coparcener. Likewise Most. Pataso and Hika Kuer were entitled to maintenance only and had no right to execute any gift deed in favour of the plaintiffs as such the gift deeds were void. Ultimately, all the properties in suit came in possession of Kamla Rai who was last surviving coparcener. He sold some properties to defendant No.1 Janki Rai who came in possession. Kamla Rai also executed several deeds of gift in respect of remaining suit land. 4. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues: “(i) Is the suit as framed maintainable ? (ii) Have the plaintiffs got cause of action or right to sue ? (iii) Is the suit barred by limitation ? (iv) When did Dhanukhdhari and Dhaneshwar die ? (v) Did the four sons of Bhaiyaram Ram die in jointness or in a state of separation ? (vi) Whether the gift deeds dated 8.12.1951 executed by Sheodhari, pataso and Hika kuer in favour of the plaintiffs are valid, binding and effective ? (vii) Are the plaintiffs entitled to a decree for partition ? (v) Did the four sons of Bhaiyaram Ram die in jointness or in a state of separation ? (vi) Whether the gift deeds dated 8.12.1951 executed by Sheodhari, pataso and Hika kuer in favour of the plaintiffs are valid, binding and effective ? (vii) Are the plaintiffs entitled to a decree for partition ? (viii) To what relief, or reliefs if any are the plaintiffs entitled ?” 5. After trial the lower court came to the conclusion that Dhaneshwar Rai died in the year 1946 as claimed by the plaintiffs. Dhanukhdhari Rai died in the year 1944. The plaintiffs have not adduced much reliable evidence in support of the story of the separation amongst four sons of Bhaiyaram Rai. The four sons of Bhaiyaram Rai did not die in separation rather they were joint. On these findings the lower court dismissed the suit. 6. The learned counsel appearing on behalf of the appellants submitted that there were overwhelming evidences brought by the plaintiffs to show that the sons of Bhaiyaram Rai were separated and they were dealing their properties independently and exclusively. The properties were being acquired separately by them and also the properties were transferred by them and further they were residing and messing separately since long but the lower court failed to appreciate that there were separation between the four brothers and recorded wrong finding. According to the learned counsel Ext.5 is a judgment passed by the L.A. Reference Court which was inter se between the parties. In that case the dispute between the parties was referred under Section 30 of the Land Acquisition Act and the same point was decided by the reference court which was upheld up to the Supreme Court. Therefore, the point arises as to whether there was separation or jointness has already been decided by a competent court as such the finding will operate as res judicata. However, the lower court did not even refer to Ext.-5 as such the judgment of the lower court is vitiated. The finding recorded by the lower court is contrary to the finding recorded in the earlier proceeding under Section 30 of the L.A. Act whereby it is clearly found that the gift deeds executed by Kamla Rai are not genuine deeds and the gift deeds are fraudulent and collusive. It has also been held in that Ext.5 that there was partition between the four sons. It has also been held in that Ext.5 that there was partition between the four sons. On these grounds, the learned counsel submitted that the impugned judgment and decrees are liable to be set aside. 7. On the other hand, the learned senior counsel Mr. Keshav Srivastava appearing on behalf of the respondents submitted that the court below has found that the plaintiffs failed to prove that there was partition between the four brothers therefore, the properties ultimately devolved on the surviving coparcener i.e. Kamla Rai who has executed the sale deeds and gift deeds in favour of the defendant Nos. 1 to 7. The two widows namely Most. Pataso and Most. Hika were only maintenance holder as such they had no right to execute any gift deed regarding the joint family property. The trial court considering the materials available on record has recorded the finding that there was no partition between the parties. In such circumstances, the judgment and decree of the trial court cannot be interfered with in appellate jurisdiction. So far the Ext.-5 is concerned, the learned counsel for the respondents submitted that against the judgment of this Court the respondents filed Special Leave to Appeal (Civil) No. 6750 of 1982 and the Hon’ble Supreme Court while dismissing the Special Leave Petition observed that the dismissal of the SLP as a result of which the decision of the High Court has now become final shall not be res judicata for giving effect to the ultimate decree in the partition matter. In such circumstances the Ext.-5 filed by the appellants will not operate as res judicata. In such view of the matter the lower court has rightly not considered Ext.-5. On these grounds, the learned counsel for the respondents submitted that the present first appeal is liable to be dismissed with cost. 8. In view of the above rival contentions of the parties, the point arises for consideration in this appeal is, as to whether there was severance of coparcenary status/ partition between the four sons of Bhaiyaram Rai and whether the impugned judgment and decree are sustainable in the eye of law. 9. In the present case, the genealogy given by the plaintiff is admitted by the defendants. The plaintiffs claimed title on the basis of the gift deeds executed by the widow Most. Pataso Kuer, Most. 9. In the present case, the genealogy given by the plaintiff is admitted by the defendants. The plaintiffs claimed title on the basis of the gift deeds executed by the widow Most. Pataso Kuer, Most. Hika and Sheodhari Rai in the year 1951 by four registered gift deed. According to the defendants there was no partition between the four sons, the widows were only maintenance holder. The sale deeds executed by Sheodhari in favour of defendants 3rd set are Farzi and since the property was coparcenary property Sheodhari Rai could not have executed valid gift in favour of the plaintiffs. On the death of Sheodhari in the year 1952 all the properties devolved on the sole surviving coparcener Kamla Rai. The defendants are claiming title on the basis of either sale deeds or gift deeds through Kamla Rai. 10. In view of the above case of the parties, if it is found that there was severance of coparcenary status then the properties of the husband namely Dhanukhdhari Rai and Dhaneshwar Rai will be inherited by their widows namely Most. Pataso Kuer and Most Hika Kuer. If it is found that there was no severance of status and the family remained as coparcenary family then a coparcener has no right to execute gift deed with regard to the coparcenary property as such the gift deed in favour of the plaintiffs will be void gift deed. In such view of the matter this is the crucial question to be decided. In support of their respective case the parties have produced oral as well as documentary evidences. It appears that although in the original plaint the time of separation between the four brothers was not given but by way of amendment this fact was brought in the pleading to the effect that the separation took place 49-50 years ago i.e. in the year 1930-31. PW 2 has stated that all the four brothers lived separately after the death of their father. It may be mentioned here that this witnesses has not been cross-examined on this point. The other witnesses examined by the plaintiffs are PW 3 to 7 and PW 10 (plaintiff No.4). All the witnesses have clearly stated that all the four brothers were separate and were cultivating the lands separately according to their convenience. The plaintiffs also produced Ext. It may be mentioned here that this witnesses has not been cross-examined on this point. The other witnesses examined by the plaintiffs are PW 3 to 7 and PW 10 (plaintiff No.4). All the witnesses have clearly stated that all the four brothers were separate and were cultivating the lands separately according to their convenience. The plaintiffs also produced Ext. G-1/2 and G-1/4 to show that the properties were being acquired by Kamla Rai exclusively in the year 1937 when the brothers were alive. The other sale deeds of the year 1934 and 1937 are G-1/A, G-1/3 to G-1/8. Out of the sale deeds some sale deeds are in the name of Sheodhari Rai which shows that he also acquired property separately. In sale deed Ext. G-1/4 which is executed in favour of Kmala Rai in the western boundary it is mentioned “house of Sheodhari Rai”. The question is if there was no separation between the brothers in the boundary, the house of Sheodhari Rai could not have been mentioned. It is admitted fact that here there is no document of partition. According to the plaintiffs since last half century the parties are living separately and cultivating the lands separately. These documents have been produced in support of the case of the plaintiffs. These sale deeds are either of the year 1934 or of the year 1937. The brothers were acquiring the property in their separate names. In other words the parties were dealing the properties separately. 11. Ext. 2 is registered sale deed dated 20.10.1951 executed by Sheodhari Rai in favour of Shivnandan Rai. From perusal of the sale deeds it appears that the land was purchased by Sheodhari in court auction. Now therefore, from this exhibit also it appears that the properties were being purchased by a brother in court auction separately. Ext. 3 is a certified copy of the mortgage deed dated 4.5.1942 executed by Kamla Rai. This document has also been produced to show that the brothers were dealing the properties separately since long. In Ext. 3 Sheodhari Rai has identified Kamla Rai. Ext. G-1/4 is registered sale deed dated 31.8.1939. From perusal of the judgment of the lower court it appears that the lower court without discussing the effect of these sale deeds only stated that these documents are useless and not on the point for decision between the parties. Ext. In Ext. 3 Sheodhari Rai has identified Kamla Rai. Ext. G-1/4 is registered sale deed dated 31.8.1939. From perusal of the judgment of the lower court it appears that the lower court without discussing the effect of these sale deeds only stated that these documents are useless and not on the point for decision between the parties. Ext. G-1/3 is the sale deed dated 13.5.1944 in favour of Kamla Rai. 12. Ext. 5 is the judgment passed by the Additional District Judge, Motihari on 30th July 1973 in Money Appeal No. 1 of 1971/ 2 of 1971. From perusal of the said judgment it appears that 1.96 acres was acquired by the State Government and compensation of Rs.4902.78 was awarded. Kamla Rai filed objection claiming that the award should be prepared in his name. Reference was made under Section 30 of the L.A. Act. During the pendency of the reference case Kamala Rai died. Triloki Singh and others the donee from Kamala Rai who are respondents in this first appeal contested the matter on the same ground which is being raised in the present case. The present plaintiffs’ case was same in that case. They were claiming title on the basis of the four gift deeds executed by two widow and Sheodhari. After considering the materials available on record the appellate court found that the gift deeds executed by Kamla Rai in favour of the plaintiffs (the respondents in this appeal) are fraudulent and collusive. It was also found that the gift deeds on the basis of which the respondents are claimed title were executed during the pendency of the reference case and at that time the interest of Kamla Rai had not been declared. It is also found that by virtue of the gift deed executed by Sheodhari and two widows the opposite party (the present plaintiffs) had acquired title over the land. It was also found that two brothers have already separated. 13. It may be mentioned here that the said judgment and decree was challenged by the present respondents before the High Court in Second Appeal No. 374 of 1974. By terms of judgment dated 24th March 1982 this court dismissed the second appeal. It was also found that two brothers have already separated. 13. It may be mentioned here that the said judgment and decree was challenged by the present respondents before the High Court in Second Appeal No. 374 of 1974. By terms of judgment dated 24th March 1982 this court dismissed the second appeal. In such view of the matter, the findings recorded by the lower appellate court in the reference case under Section 30 of the L.A. Act to the effect that there was partition between the brothers is binding on the parties. 14. The learned counsel for the respondents submitted that the Hon’ble Supreme Court in SLP No. 6750 of 1982 by terms of order dated 16.11.1987 directed that the dismissal of the SLP as a result of which the decision of the High Court has now become final shall not be res judicata for giving effect to the ultimate decree in the partition matter. According to the learned counsel therefore, the judgment Ext.5 will not operate as res judicata and therefore, the judgment cannot be looked into. So far this submission is concerned, it may be mentioned here that the Hon’ble Supreme Court has expressly made clear the judgment of the High Court shall not be res judicata for giving effect to the ultimate decree in the partition matter. Here we are not deciding the question as to whether the judgment of the High Court or the lower appellate court will operate as res judicata or not. 15. Section 11 of the Code of Civil Procedure provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Therefore, the issue was whether there was partition between four brothers or not this was an issue and in my opinion, it was the main issue in the reference case wherein it was found that there was partition between the four brothers. Therefore, the issue was whether there was partition between four brothers or not this was an issue and in my opinion, it was the main issue in the reference case wherein it was found that there was partition between the four brothers. There is no dispute that this finding of the reference court under Section 30 of the L.A. Act will not operate as res judicata. The Hon’ble supreme court also no where mentioned that the same issue can be tried subsequently also. From perusal of the judgment of the lower court it appears that the lower court has not at all even referred to this Ext.-5. 16. Now let us consider the other aspect of the matter. Even if Ext.-5 is excluded then also as discussed above the parties are dealing with the properties exclusively since long. In one of the sale deed of the year 1934 in the boundary the name of other brothers has been mentioned. Therefore, it has become admitted fact that the parties are living separately, messing separately, dealing with properties separately and cultivating the lands separately since long. 17. In the case of Arjun Mahto vs. Monda Mahatain AIR 1971 Patna 215 a division bench of this court has held that no doubt separation in mess and residence, separate transaction, separate acquisition of the property and separate cultivation individually are not the proof of partition but the cumulative effect thereof if taken together with the conduct of the parties it will lead to inference that there had already been partition. The lands were acquired in the year 1968 and the award was prepared in the name of the plaintiffs. The objection filed by the donor of the respondent was negatived by the appellate court finding that there was partition between the four brothers. 18. Now let us examined other aspect of the matter. The gift deeds are of the year 1951 in favour of the plaintiffs. These are all registered gift deeds. In the case of Vimal Chand Ghevar Chand Jain and others vs. Ramakant Eknath Jadoo (2009) 5 SCC 713 the Apex Court has held that a registered deed of sale carries presumption that the transaction was a genuine one. If execution of sale deed is proved, onus is on the defendant to prove that the deed was not executed and it was a sham transaction. If execution of sale deed is proved, onus is on the defendant to prove that the deed was not executed and it was a sham transaction. In the present case, no doubt, the documents are registered gift deeds but the same principle will apply. In the case of Prem Singh vs. Birbal Singh 2006 (3) PLJR 179 SC the Hon’ble Supreme court has held that there is a presumption that a registered document is validly executed. A registered document therefore, prima facie would be valid in law vide paragraph 28 of the judgment. In the present case, the defendants never filed any counter claim for declaring the gift deeds in favour of the plaintiffs as void. Moreover, according to the Article 59 of the Limitation Act the period was only three years either for declaring the deed is void or is fraudulent deed therefore, it may be set aside. In the case of Sitasaran Prasad vs. Manorama Devi 2012 (2) BLJ 165 it has been held by this Court that registered document is presumed to have been validly executed till the facts invalidating the document is proved. In the present case, admittedly gift deeds were executed in the year 1951 which was never challenged by the defendants. After expiry of the period of limitation the same became final till today and no challenge has been made. 19. In the case of Kalyani (dead) by L.Rs. vs. Narayanan and others AIR 1980 SC 1173 : 1980 (2) Supreme Court Reporter the Apex Court at paragraph 3 has held as follows : “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 severalty. 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. Such partition has an impact on devolution of share of such member. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan, (1886) 11 Moo Ind App 76 (PC) quoted with approval in Smt. Krishnabai Ganpatrao v. Appasaheb Tuljaramarao (1979) 4 SCC 60 at p. 68: ( AIR 1979 SC 1880 ). A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv) 43 Ind App 151 : (AIR 1916 PC 104). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” 20. Now therefore, in view of the above discussion of the evidence and the principles of law annunciated by Supreme Court, I came to the conclusion that there was partition between the four brothers. Since there was partition, the property of Dhanukhdhari Rai devolved on his widow on the death of husband in the year 1944. After coming into force of the Hindu Succession Act in the year 1956 according to the provision as contained in Section 14 the widow became the exclusive owner of the property and likewise on the death of Dhaneshwar in the year 1946 his widow inherited his property. In my opinion, therefore, they had validly executed the gift deed. The defendants have failed to adduce any evidence to show invalidity of the gift deeds or voidability of the gift deeds. Sheodhari Rai himself has executed the gift deed. We have already found that there was partition therefore, the property gifted by Sheodhari Rai in favour of the plaintiffs is valid gift deed and there is no bar. In view of the case of Kalyani (Supra) since there was severance of status of corparcenary the property will devolve on the heirs of the male holder and will not get by the principles of survivorship. 21. In view of the case of Kalyani (Supra) since there was severance of status of corparcenary the property will devolve on the heirs of the male holder and will not get by the principles of survivorship. 21. From perusal of the judgment of the lower appellate court it appears that lower court has not consider the case in the light of the above settled principles of law and has also not considered the fact that this very issue has already been decided in reference under Section 30 of the L.A. Act which was confirmed up to the Hon’ble Supreme court. In my opinion, therefore, the impugned judgment and decree are unsustainable in the eye of law. 22. In the result, this first appeal is allowed. The impugned judgment and decree are set aside and the plaintiffs’ suit is decreed with costs throughout.