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2013 DIGILAW 67 (JHR)

Bataso Devi v. Sitalo Devi

2013-01-11

ALOK SINGH

body2013
JUDGMENT Alok Singh, J. This is a Second Appeal filed under Section 100 C.P.C., assailing the judgment and decree dated 12.08.1991 passed by learned District Judge, Godda, in Title Appeal No. 83/1963 (91/1986), Ram Shankar Choudhary & Ors. Vs. Sreemati Sitalo Devi & Ors. as well as judgment and decree dated 07.08.1963 passed by Subordinate Judge, Deoghar in Title (Partition) Suit No. 3/1961, whereby learned trial court has decreed the suit of partition of the plaintiff (herein Respondent No. 1) declaring that defendant No. 7 is entitled 1/2 share while plaintiff/defendant Nos. 1, 2 and 3 each are entitled to 1/10th share and defendant Nos. 4 and 5 are jointly entitled to 1/10th share in property Schedule 'A'. Further declaring plaintiff/defendant Nos. 1, 2 and 3 each are entitled to 1/5th share in Schedule 'B' property and defendant Nos. 4 and 5 are jointly entitled to 1/5th share in Schedule 'B' property. First appeal, there from was also dismissed by the appellate court confirming the preliminary decree passed by learned trial court. 2. Brief facts of the present case, inter alia, are that plaintiff Respondent No. 1 had filed the suit for partition claiming one tenth share in schedule 'A' and one fifth share in schedule 'B' property. 3.It has been contended that properties described in schedule 'A' were jointly possessed by late Motilal Choudhary and his father's brother Jagarnath Choudhary, while properties described in schedule 'B' were acquired by Late Motilal Choudhary, as an heir of his maternal grand aunt after some litigation. Motilal Choudhary had expired in the month of December, 1960 leaving behind his widow defendant No. 3, his two sons defendant Nos. 1 and 2 and plaintiff, his only daughter and two minor sons of his predeceased daughter, defendant Nos. 7 and 8. Defendant No. 9 is the son of his brother Late Jagarnath Choudhary and defendant Nos. 4 and 5 are minor sons of defendant No. 1Ram Shankar Choudhary and defendant No. 6 is the minor son of defendant No. 2 Harihar Choudhary. 4.Defendant Nos. 1, 2 and 3, sons and widow of Motilal Choudhary had filed joint written statement, taking defence that Late Motilal Choudhary in his lifetime was pleased to divide his properties between his two sons, Rameshwar Choudhary and Harihar Choudhary and had reserved only 5 bighas of cultivable lands and some homestead land for himself and his wife. 4.Defendant Nos. 1, 2 and 3, sons and widow of Motilal Choudhary had filed joint written statement, taking defence that Late Motilal Choudhary in his lifetime was pleased to divide his properties between his two sons, Rameshwar Choudhary and Harihar Choudhary and had reserved only 5 bighas of cultivable lands and some homestead land for himself and his wife. It has further been contended that a memorandum of partition was executed by Late Motilal Choudhary, Ext. E, in the year 1952 and property stood divided prior to the enforcement of Hindu Succession Act, therefore, property was not joint on the date of institution of the present suit as well as on the date of enforcement of Hindu Succession Act and consequently plaintiff has absolutely no share in the property already divided by father, Late Motilal Choudhary between his two sons. 5.Learned trial court, vide impugned judgment and decree dated 07.08.1963 did not believe the alleged partition and memorandum of partition of 1952 and found that both the properties Schedule 'A' and 'B' were self acquired properties of Late Motilal Choudhary; Motilal Choudhary has expired intestate. Therefore, 1/2 share of Late Motilal Choudhary in property Schedule 'A' and entire property Schedule 'B' would devolve in equal shares between his two sons, defendant Nos. 1 and 2, widow defendant No. 3, plaintiff daughter and defendant Nos. 4 and 5, sons of predeceased daughter and ultimately decreed the suit of the plaintiff. Alleged deed of 1952, which according to plaintiff is partition deed and according to defendants is memorandum of partition, was impounded for deficit of stamp duty and was not relied upon. 6. Feeling aggrieved, first appeal was preferred before learned District Judge. First appeal, too, came to be dismissed by the first appellate court, vide judgment dated 22.09.1973 against the judgment and decree passed by first appellate court. Second Appeal bearing No. 75 of 1974 was preferred before Patna High Court. However, in the Second Appeal, question arose whether the appellants could take advantage of a document which was sought to be impounded under the provisions of Section 35 of the Indian Stamp Act by the trial court. Vide judgment dated 04.09.1985, appeal was remanded to the first appellate court by observing that defendants may pay deficit stamp duty on the deed (Ext. E) and first appellate court would decide the first appeal afresh. Vide judgment dated 04.09.1985, appeal was remanded to the first appellate court by observing that defendants may pay deficit stamp duty on the deed (Ext. E) and first appellate court would decide the first appeal afresh. After remand, first appeal once again came to be dismissed by impugned judgment and decree dated 12.8.1991. Feeling aggrieved, present Second Appeal was preferred. 7. This Court, vide order dated 16.12.1992, was pleased to admit the appeal on the following substantial questions of law. “1. Whether the court of appeal below is correct in holding that the document of partition (Ext. E) though impounded by the order of this Court cannot be used as an evidence of partition and can only be looked for collateral purposes ? 2. Whether the court of appeal below is correct in rejecting the deed of partition/ or memorandum (Ext. E) when pondage fee has been paid ? 3. Whether the court below of appeal below is correct in rejecting the document of partition (Ext. E) on the ground that the properties as mentioned to be held by defendants does not fully tally with the details of the land mentioned in their written statement ? 4. Whether the court of appeal below is correct in holding that the deed of partition (Ext. E) though impounded cannot be of any assistance to the defendants ?” 8. I have heard Mr. J.P. Jha, learned Sr. Advocate as well as Mr. Manoj Kumar Sah, learned counsel appearing for the respondents. 9. Having heard learned counsel for the parties at length and having perused the record, this Court as well as learned counsel for the parties found that questions of law formulated by this Court, vide order dated 16.12.1992, in fact, do not arise for fair adjudication of this appeal and, in fact, following substantial question of law arises for the purpose of deciding the present appeal as to : “Whether property was mutually divided among defendant Nos. 1 and 2 in the year 1952 and Ext. E, alleged memorandum of partition/partition deed, in fact, was ever executed by Late Motilal Choudhary, father of the plaintiff ? 10. Learned counsel for the parties are heard at length on the newly formulated question of law as formulated hereinabove. 11. 1 and 2 in the year 1952 and Ext. E, alleged memorandum of partition/partition deed, in fact, was ever executed by Late Motilal Choudhary, father of the plaintiff ? 10. Learned counsel for the parties are heard at length on the newly formulated question of law as formulated hereinabove. 11. Undisputedly, as observed by the first appellate court, Shri Motilal Choudhary himself had executed the document in 1956 known as Bhugatbandha (mortgage deed) showing himself as the Karta of the joint family and mortgaging the property in question. First appellate court has specifically observed that explanation furnished by defendant No. 1 to the effect that Late Motilal Choudhary had executed the Bhugatbandha (mortgage deed) in the year 1956 for repayment of the family debt which was taken by Late Motilal Choudhary when the property was joint, is not trustworthy. Learned first appellate court has further observed that had there been any partition in 1952, as alleged by defendant Nos. 1 and 2, there was no need or occasion for Late Motilal Choudhary to execute the mortgage deed in the year 1956 of the property of which he was no more the joint owner and had already been partitioned in 1952. 12.In view of the admitted fact that Late Motilal Choudhary had executed a mortgage deed in 1956 of the property in question and redemption of the mortgage in the year 1962 goes to prove that in fact, till 1962, property was not partitioned and it creates grave doubt about the genuineness of Ext. E i.e. partition deed of 1952. Moreover, Ext. E alleged partition deed/memorandum of partition is unregistered document and execution thereof is highly doubtful. 13.In view of this, I do not find any fault in the findings of fact recorded by two courts below that property was not ancestral in the hands of Late Motilal Choudhary. Motilal Choudhary has expired intestate and in fact property was never partitioned in 1952, as alleged by defendant Nos. 1 and 2. Question of law so reformulated stands replied against the appellants in favour of the plaintiff. 14. Undisputedly, defendant No. 3 widow of Late Motilal Choudhary and mother of plaintiff and defendant Nos. 1 and 2 has expired intestate during the pendency of the first appeal, therefore, her 1/10th share in property Schedule 'A' and 1/5th share of property Schedule 'B' shall devolve equally between plaintiff and defendant Nos. 14. Undisputedly, defendant No. 3 widow of Late Motilal Choudhary and mother of plaintiff and defendant Nos. 1 and 2 has expired intestate during the pendency of the first appeal, therefore, her 1/10th share in property Schedule 'A' and 1/5th share of property Schedule 'B' shall devolve equally between plaintiff and defendant Nos. 1 and 2 and defendant Nos. 4 and 5 jointly. 15. Consequently, with the above modification, present Second Appeal fails and is hereby dismissed. However, in the peculiar facts and circumstances of the case, parties are directed to bear their own cost.