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2014 DIGILAW 1006 (PAT)

Savitri Devi v. Jaiwanti Devi

2014-09-17

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The defendants have filed this first appeal against the judgment and decree dated 27.08.1982 passed by the learned 2nd Additional Subordinate Judge, Biharsharif in Title Suit No.113 of 1977/36 of 1982 whereby the court below decreed the plaintiff’s suit for partition. 2. The plaintiff-respondent no.1 Smt. Jaiwanti Devi filed the aforesaid partition suit for partition of her 1/3rd share in the suit property. She claimed the said relief alleging that Chhatar Singh, Tufani Singh and Rohan Singh were the three brothers. Tufani Singh had a son Bodhu Singh. The three brothers separated before survey operation and their separate possession was shown in the survey record of right. They were cultivating the lands according to their convenience but there was no partition by metes and bounds between them. Bodhu Singh died in November, 1956 in the state of separation leaving behind his only daughter, the plaintiff Smt. Jaiwanti Devi. The defendant no.1 is the daughter of Mahabir Singh, who was son of Rohan Singh. Bodhu Singh had performed marriage of the plaintiff in Baishakh 1363 Fasali but thereafter on 10th of Kartik 1364 Fasali he died, as such the plaintiff succeeded to his property. The defendants represent the branch of Chhatar Singh and Rohan Singh. Anupa Kuer wife of Mahabir Singh in collusion with her daughter Mundrika Devi (defendant no.1) filed Title Suit No.16 of 1957 against the defendant nos.2, 3 and 6 leaving aside the plaintiff for declaration of her title and partition of the property belonging to Mahabir Singh. In the said suit the existence of plaintiff as daughter of Bodhu Singh was denied by them and they compromised and filed fraudulent compromise petition on 15.12.1957 on the basis of which a compromise decree was passed on 15.04.1961. The plaintiff was neither party nor had knowledge and further the compromise decree was fraudulent. It is not binding on the plaintiff and that the decree is void and illegal. In fact, the plaintiff is still in joint possession of the property and she is residing in the house of Bodhu Singh. She is a co-sharer with the defendants so she is entitled to 1/3rd share in the suit property. Schedule-II property is self acquired property of Bodhu Singh, who was in exclusive possession over the same till his death. After his death the plaintiff came in possession. She is a co-sharer with the defendants so she is entitled to 1/3rd share in the suit property. Schedule-II property is self acquired property of Bodhu Singh, who was in exclusive possession over the same till his death. After his death the plaintiff came in possession. By some bogus transaction and without consideration, some lands described in Schedule-IV of the plaint were transferred by the defendants. 3. The defendant no.1 filed contesting separate written statement. Besides taking various ornamental and legal pleas the defendant no.1 mainly contended that Bodhu Singh died issueless. The plaintiff is cousin sister of Binda Singh (defendant no.12) who set up the plaintiff and got filed the suit. In fact the plaintiff is daughter of one Ram Charan Singh of village Kulti. Bodhu Singh died in the month of Kartik 1955 and not in the month of November 1956. The plaintiff is not in joint possession of the property as she is not related in any way. The compromise decree passed in Title Suit No.16 of 1957 is valid and legal. In the plaint there is no Schedule-III or Schedule-IV mentioned by the plaintiff. 4. The defendant nos.2 to 10 also filed separate written statement wherein they alleged that Bodhu Singh died issueless on 20.11.1955. Wife of Bodhu Singh died 40-42 years earlier. Their rest defence is in the same line as that of defendant no.1. 5. On the basis of the aforesaid pleadings the court below framed the following issues:– (i) Whether the plaintiff has any cause of action for the suit? (ii) Whether the suit, as framed, maintainable? (iii) Whether the suit is barred by law of limitation? (iv) Whether the plaintiff is the daughter of Bodhu Singh? (v) Whether Bodhu Singh died in the year 1955 or 1956? (vi) Whether the plaintiff is entitled for a decree of partition, if so, in which property and to what extent? (vii) To what other relief or reliefs is the plaintiff entitled? 6. The trial court found that plaintiff is daughter of Bodhu Singh and Bodhu Singh died on 20.11.1956 and decreed the plaintiff’s suit. 7. Learned senior counsel Mr. T.N. Maitin for the appellants submitted that it is the plaintiff’s case that there had been no partition of the joint family property, therefore, if her father died prior to coming into force of Hindu Succession Act the plaintiff will not be entitled to any share. 7. Learned senior counsel Mr. T.N. Maitin for the appellants submitted that it is the plaintiff’s case that there had been no partition of the joint family property, therefore, if her father died prior to coming into force of Hindu Succession Act the plaintiff will not be entitled to any share. Although the plaintiff specifically pleaded that her father Bodhu Singh died in Kartik, i.e. November, 1956 but except the oral statements of the witnesses no documentary evidence has been produced. On the contrary, the defendants-appellants produced public documents, which are marked exhibit but the court below misread the date of death by misinterpreting the same and recorded the finding that Bodhu Singh died on 20.11.1956. The learned senior counsel submitted that the defendants have produced Ext.A-1 in support of the date of death of Bodhu Singh but the court below has wrongly misread the date of death of Bodhu Singh. 8. Learned senior counsel Mr. T.N. Maitin for the appellants further submitted that so far finding regarding the plaintiff is the daughter of Bodhu Singh is also wrong finding because the court below has not properly appreciated the evidence. According to the learned counsel, the appellants have examined many witnesses and also produced documentary evidences in support of the fact that Bodhu Singh died issueless and the plaintiff is not the daughter of Bodhu Singh. On these grounds the learned senior counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit is for partition be dismissed. 9. On the other hand, learned counsel for the plaintiff-respondent no.1 submitted that the court below has considered all the oral as well as the documentary evidences and then has recorded the finding that the plaintiff is the daughter of Bodhu Singh. Therefore, so far that finding is concerned, it is valid finding and no interference should be made. So far Ext.A-1 is concerned, the learned counsel submitted that in the said very exhibit itself the date of death was recorded as 20.11.1956 but it was penned through and 20.11.1955 has been mentioned. The court below considering this aspect of the matter held that Bodhu Singh died on 20.11.1956. In view of the aforesaid finding of the court below the first appeal is liable to be dismissed. 10. The court below considering this aspect of the matter held that Bodhu Singh died on 20.11.1956. In view of the aforesaid finding of the court below the first appeal is liable to be dismissed. 10. In view of the submission of the learned counsel for the parties the points arise for consideration in this first appeal are as follows:– (i) Whether the plaintiff is the daughter of Bodhu Singh or not? (ii) Whether Bodhu Singh died on 20.11.1956 or 20.11.1955? Point No.(i) : 11. According to the plaintiff, she is the daughter of Bodhu Singh. On the contrary, the case of the defendants-appellants is that Bodhu Singh died issueless and plaintiff, Jaiwanti Devi is cousin sister of defendant no.12 and is daughter of one Ram Charan Singh. In support of their respective cases both the parties have adduced evidences. The plaintiff has produced Ext.1 (Pariwarik Pustika) wherein the plaintiff, Jaiwanti Devi has been shown to be the daughter of Bodhu Singh. To controvert the genuineness of this entry the defendants have produced certified copy of Pariwarik Pustika which was filed and exhibited in Title Suit No.16 of 1957. Admittedly in fact Ext.1 is the Pariwarik Pustika and, therefore, on the basis of certified copy, the original document cannot be discarded. The court below has considered all aspects of the matter regarding both the documents filed by the plaintiff and the defendants and then held that Ext.1 helps the plaintiff. Ext.C is the plaint of Title Suit No.16 of 1957. It is admitted fact that in that suit Jaiwanti Devi was not a party, therefore, any statement made therein will not be binding on the plaintiff. Ext.A is the written statement in that suit filed by defendant nos.2 to 10 and Ext.D is the decree. All these documents relating to earlier suit, i.e. Title Suit No.16 of 1957 only show that Jaiwanti Devi was not made party. Here, this is the case of the plaintiff that although she is a co-sharer, she was not made party in the aforesaid suit. In such circumstances, all these documents and the statements made therein will not be binding on the plaintiff. These documents only prove that Jaiwanti Devi was not made party. Voter list (Ext.F) has been filed by defendants wherein also the name of Jaiwanti Devi has not been mentioned as daughter of Bodhu Singh. In such circumstances, all these documents and the statements made therein will not be binding on the plaintiff. These documents only prove that Jaiwanti Devi was not made party. Voter list (Ext.F) has been filed by defendants wherein also the name of Jaiwanti Devi has not been mentioned as daughter of Bodhu Singh. It appears that this voter list (Ext.F) is of the year 1975. The case of the plaintiff is that her father got her married in the year 1363 Fasali and then she went to Sasural. In such circumstances only because her name is not mentioned in Ext.F (voter list), it cannot be conclusively found that she is not the daughter of Bodhu Singh. 12. The plaintiff also examined P.Ws.2 to 13 in support of her case that she is daughter of Bodhu Singh. P.W.1 herself is the plaintiff. The defendants have also examined D.Ws.2 to 10, 14, 15 and 17, who have only stated that Bodhu Singh died issueless and plaintiff is not daughter of Bodhu Singh. 13. It may be mentioned here that the defendants came with a specific case that Jaiwanti Devi, the plaintiff, is daughter of Ram Charan Singh. So far this case is concerned, no reliable evidence admissible under Section 50/60 of the Evidence Act has been produced by the defendants. So far daughtership of Bodhu Singh is concerned, the defendants have adduced negative evidence to the effect that Bodhu Singh died issueless and the plaintiff is not his daughter. On the contrary, the plaintiff has produced witnesses, who have supported fully the case of the plaintiff and over and above the same, the original Pariwarik Pustika (Ext.1) has been produced. 14. In view of my above discussion, I find that the plaintiff has been able to prove that she is daughter of Bodhu Singh. The finding of the court below on this question is, therefore, confirmed. Point No.(ii) : 15. The plaintiff has filed this partition suit alleging that there had been no partition in the joint family consisting of the three brothers including the grandfather of the plaintiff. Therefore, the property is coparcenary property. In coparcenary property the daughters have got no share. On the death of grandfather of the plaintiff, namely, Tufani Singh, his interest will devolve on Bodhu Singh, who was joint with other coparceners. Therefore, the property is coparcenary property. In coparcenary property the daughters have got no share. On the death of grandfather of the plaintiff, namely, Tufani Singh, his interest will devolve on Bodhu Singh, who was joint with other coparceners. The daughter of Bodhu Singh, i.e. the plaintiff will get the interest in the separate property of her father and not in the coparcenary joint property. Here, admittedly the property in suit is joint family property. Although it is pleaded by the plaintiff that Schedule-II property is self acquired property but nothing has been brought on record in support of the said case and in fact Schedule-II is the suit property itself measuring 25.18 decimals. Except this Schedule-II, no other property has been mentioned in any way in the plaint. Therefore, if plaintiff will succeed proving that her father died after coming into force of Hindu Succession Act, then only she will be entitled to a share in the property otherwise not. The plaintiff in support of her case that her father died in the month of Kartik 1364 Fasali has examined witness. This Kartik 1364 Fasali corresponds to November 1956. This position is admitted. The Hindu Succession Act came into force on 17th June, 1956. On the contrary the specific case of the defendants is that Bodhu Singh died on 20.11.1955. The witnesses examined by plaintiff as P.Ws.2 to 8 and 14 have all stated only that Bodhu Singh died in the month of Kartik 1955. So far this date is concerned, admittedly the plaintiff has not produced any documentary evidences. On the other hand, the defendants have produced Ext.A-1 which is certified copy of death register. 16. The Division Bench of this Court in the case of Gopi Chand Arya and others Vs. Sm. Bedamo Kuer and others, reported in 1966 Patna 231 has held that death register is a public document being an entry made by a public servant in the ordinary course of his public duties. The entry in the death register, which is a public document, must undoubtedly have a presumption of correctness attached to it and, therefore, a heavy onus would undoubtedly lie upon the plaintiff to displace the presumption of correctness attached to the death register. The entry in the death register, which is a public document, must undoubtedly have a presumption of correctness attached to it and, therefore, a heavy onus would undoubtedly lie upon the plaintiff to displace the presumption of correctness attached to the death register. In the present case, except the original statement without giving the date, the witnesses examined on behalf of the plaintiff have stated that Bodhu Singh died in Kartik 1955. 17. Since Ext.A-1 produced by the defendants-appellants is a public document and presumption of its correctness is in favour of the defendants-appellants, this document is an important document for consideration. The court below has considered this document and has mentioned that it was written “1956” and thereafter it was penned through and “1955” has been written. I myself perused the Ext.A-1. From perusal of the entry it is clear that entry was made on 26.11.1955. When the entry was registered on 26.11.1955 there is no question of mentioning the date of death as ‘20.11.1956’ arises. It appears that by mistake in the year of death in place of ‘1955’, ‘1956’ was mentioned, therefore, the entire date, month and year were penned through and signature has been put and a fresh date has been mentioned which is dated 20.11.1955. It is not the case that there is overwriting in fresh date. Moreover, the registration date has been clearly mentioned as ‘26.11.1955’. The court below has not considered this aspect of the matter nor he noticed the registration date. It is not the case of the plaintiff-respondent no.1 that in fact the date of registration 26.11.1955 is wrong. Therefore, this entry cannot be said to be wrong entry. In such circumstances, no prudent person will believe or rely that on 26.11.1955 the date of death of a person, who died on 20.11.1956, will be entered in the column of date of death. In my opinion, therefore, the court below has wrongly misread the date and/or misconstrued the entry made in the death register which is public document. I, therefore, find that this document, Ext.A-1, will prevail over the oral evidence produced by the plaintiff. I, therefore, find that Bodhu Singh died on 20.11.1955, i.e. prior to coming into force of the Hindu Succession Act, 1956. Accordingly, this point is answered in favour of the appellants and against the plaintiff-respondent no.1. I, therefore, find that this document, Ext.A-1, will prevail over the oral evidence produced by the plaintiff. I, therefore, find that Bodhu Singh died on 20.11.1955, i.e. prior to coming into force of the Hindu Succession Act, 1956. Accordingly, this point is answered in favour of the appellants and against the plaintiff-respondent no.1. In view of the aforesaid finding when plaintiff’s father died on 20.11.1955, the plaintiff had no interest in the suit property, which was coparcenary joint property. 18. In the result, this first appeal is allowed. The impugned judgment and decree are set aside. The plaintiff’s suit for partition is hereby dismissed. In the facts and circumstances of the case, there shall be no order as to cost. ?