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2015 DIGILAW 355 (ORI)

Sarat Chandra Behera v. Santosh Kumar Behera

2015-06-17

D.DASH

body2015
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge, Balasore in Title Appeal No. 89/30 of 2001/1999 setting aside the judgment and decree passed by the learned Additional Civil Judge (Sr. Division) Balasore in Title Suit No. 228 of 1990. The learned Additional Civil Judge (Sr. Division) had dismissed the suit for partition of properties described in schedule 'B' and 'C' of the plaint with allotment of 1/5th share therein to the plaintiffs and declaring defendant no. 1 to be the adopted son of Jayakrushna Behera and his wife Kshetri. Learned Additional District Judge in setting aside the judgment and decree impugned in the appeal has decreed the suit in its entirety allowing all the prayers made therein. 2. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below. 3. The plaintiffs have placed the following genealogy showing the inter se relationship between the parties. Rama Chandra Behera Jayakrushna Jagannath Bhagaban Sachidananda Gajendra Bhabani Bilasini Sarat (Adopted Son) Hari Mohan Madan Allahadin Suhasini Futi Santosh Sarat - Said to have been (adopted to Jayakrushna) It is said that the properties are the ancestral properties of the parties, i.e., the plaintiffs and defendant nos. 1 to 11 and they constitute the undivided Hindu joint family and are governed by Maitkshara School of Hindu Law. It is averred that the properties are not partitioned amongst the parties in metes and bounds and that defendant nos. 12 to 20 had purchased a portion of the said properties from the co-sharers and they have purchased a portion of the undivided homestead and house described in schedule 'C'. It is also the case of the plaintiffs that this Sarat has been adopted by Jayakrushna one of the five sons of the common ancestor Rama Chandra. 4. The defendants contested the suit having denied the case of the adoption of defendant no. 1 by Jayakrushna and his wife in the year 1952 as projected by the plaintiffs. However, the dispute was raised with regard to the claim that the properties were partitioned amongst the co-sharers. It is also disputed that schedule 'C' property is not undivided homestead and house of the joint family consisting of the plaintiffs and defendant nos.1 to 11. 1 by Jayakrushna and his wife in the year 1952 as projected by the plaintiffs. However, the dispute was raised with regard to the claim that the properties were partitioned amongst the co-sharers. It is also disputed that schedule 'C' property is not undivided homestead and house of the joint family consisting of the plaintiffs and defendant nos.1 to 11. Their specific case is that the suit properties have since been partitioned amongst the five sons of Rama Chandra during their life time on 01.07.1964 under one 'panchayat Bantan Patra', which of course was not accepted by the settlement authorities and accordingly the record of right in the Major Settlement remained joint. With all these they sought to non-suit the plaintiffs. 5. The trial court framed nine issues. First of all it took up the issue relating to the adoption and the approach appears to be right. On analysis of evidence in the touch stone of settled principle of law holding the field, the answer has been given against the plaintiffs categorically holding defendant no.1 as not the adopted son of Jayakrushna and his wife Kshetri. The lower appellate Court has held in the affirmative giving much emphasis upon Ext.7, the registered deed of acknowledgement of adoption said to have been executed by Kshetri the widow of Jayakrushna on 27.04.1980 concerning the said adoption. 6. The trial court then taking up the other two issues relating to the partiability of the suit land and the entitlement of the share as claimed by the plaintiffs over the same rendered conclusive finding that there had already been previous partition and the question of reopening the same does not arise. Accordingly, the suit was dismissed. The lower appellate court on these issues beginning with presumption that every Hindu family is presumed to be joint and giving stress upon the joint record of right published in the year 1987 differed with the finding of the trial court holding specifically the document 'Panchayat Bantan Patra' (Ext. I) to be invalid and in-genuine. Then coming to the issue of sale of undivided homestead and house, the lower appellate Court has held the plaintiffs entitlement to the right of premption in repurchasing the schedule 'C' property. I) to be invalid and in-genuine. Then coming to the issue of sale of undivided homestead and house, the lower appellate Court has held the plaintiffs entitlement to the right of premption in repurchasing the schedule 'C' property. The following substantial questions of law have been formulated at the time of admission of this appeal:- “(a) Whether the finding of the learned lower appellate court that the adoption as instant one is sustainable in the absence of any pleading and evidence that no witness was available at the time of trail of the suit to prove the factum of the adoption? (b) Whether presumption under section 16 of the Hindu Adoption and Maintenance Act would be applicable to a document acknowledging previous adoption in addition to the fact that the document was created after the death of adoptive father which was subsequently cancelled and does not contain any recital relating to giving and taking ceremony? (c) Whether in view of Ext 'A' (alleged Panchayat Bantan patra) which was marked with consent of the parties and the said document not being challenged as sham or nominal, if the learned lower appellate court committed illegality in holding that there was no previous partition? (d) Whether there is any discrepancies in alleged partition deed relating to allotment and if though not admitting but assuming that there was any such discrepancies, if such discrepancies are sufficient to discard Ext 'A' particularly when the aggrieved parties have accepted the possession which does not effect the plaintiff ? 7. Learned counsel for the appellants submits that the finding of the lower appellate court accepting the case of adoption is wholly contrary to the settled position of law as also the evidence on record. He contends that the document of acknowledgement of adoption (Ext. 7) has been unnecessarily given much emphasis upon when there remains no foundation for such adoption by duly proving the factum of giving and taking by leading clear, cogent and acceptable evidence. It is also submitted that even accepting for a moment that Ext. 7 is a genuine document, from the same the factum of giving and taking cannot be presumed. It is also submitted that even accepting for a moment that Ext. 7 is a genuine document, from the same the factum of giving and taking cannot be presumed. It is his further contention that the oral evidence on the score of giving and taking once having been tendered by the plaintiffs, in support of his case of adoption, the lower appellate court grossly erred in law by banking upon the theory of ancient adoption in appreciating the evidence to conclude about adoption wholly losing sight of the settled principles of law for attraction of such theory to the instant case. 8. Learned counsel for the respondents, on the other hand, supports the finding of the lower appellate court in favour of adoption. According to him, it is based on correct approach as per law to the subject and thus is in consonance with the settled position of law. 9. In order to address the above submission as to whether the divergent finding rendered by the lower appellate court is to stand or not, it would be proper to identify the reasons given by the trial court as well as the lower appellate court in support of their respective findings. But before that the settled law on the subject needs to be kept in mind. The law is fairly settled that the evidence in support of an adoption must be wholly sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural line of succession by alleging an adoption. The fact of adoption must be proved in the same way as any other fact, but where there is a lapse of long period between the date of adoption and the time when it is being questioned, every allowance for the absence of evidence to prove such fact must be favourably entertained, as after the lapse of a long period, direct evidence to prove adoption may not be available. 10. The Supreme Court in the case of L. Debi Prasad V. Smt. Tribeni Devi, AIR 1970 SC 1268 observed:- "In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. 10. The Supreme Court in the case of L. Debi Prasad V. Smt. Tribeni Devi, AIR 1970 SC 1268 observed:- "In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking. Passage of time gradually wipes out such evidence. Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether an adoption pleaded has been satisfactorily proved or not, we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. In the case of an adoption said to have taken place years before the same is questioned, the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son; the latter treated the former as his father and their relations and friends treated them as father and son. There is no predetermined way of proving any fact. A fact is said to have been proved where after considering the matters before it, the Court either believes it to exist or considers it existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Hence, if after taking an overall view of the evidence adduced into the case, we are satisfied that the adoption pleaded is true, we must necessarily proceed on the basis, in the absence of any evidence to the contrary, that it is a valid adoption as well". The aforesaid view of the Supreme Court has been followed in a number of cases of this Court and the other High Courts. The aforesaid principle only regulates the mode of proof of the factum of adoption. The aforesaid view of the Supreme Court has been followed in a number of cases of this Court and the other High Courts. The aforesaid principle only regulates the mode of proof of the factum of adoption. In the decision in the case of Sri Kanchumarthi Venkata Seetharama Chandra Row V. Kanchumarthi Raju, AIR 1925 PC 201 , which has been approved by the Supreme Court in case of Venkata Ramarao V. Kesaparagada Bhasararao, AIR 1969 SC 1359 , it has been authoritatively held therein that in the case of an ancient adoption, it stands to reason that after a very long term of years and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily upon him who challenges its validity. 11. At this juncture, it is profitable to place some more authorities in support of the submission of the learned counsel for the respondents that the adoption being an ancient one, the burden of proving giving and taking ceremony on the party who claims that there was valid adoption is discharged and shifts to the party who challenges it by proving that there was no valid adoption. In case of Rup Narain V. Mussammat Gopal Devi (1909) 36 Ind. App 103, It was indicated:- " .... The adoption, if it took place, was about fifty years ago, so that direct evidence of much value could hardly be looked for. Their Lordships are of opinion that the adoption is established. Before the death of Sultan in 1861 Wazir is described as his adopted son. On the death of Sultan, Wazir succeeded to the estate without controversy which he could only have done as adopted son and enjoyed it, and disposed of it as his own without controversy down to his death in about 1870. Before the death of Sultan in 1861 Wazir is described as his adopted son. On the death of Sultan, Wazir succeeded to the estate without controversy which he could only have done as adopted son and enjoyed it, and disposed of it as his own without controversy down to his death in about 1870. Almost every document, both during the life of Wazir and since his death, is framed entirely upon the basis of adoption." It is worthwhile to note that in the said case the Court took into account that on account of the fact that fifty years had elapsed direct evidence of much value could hardly be looked for and then it considered the circumstance that during the lifetime of the adoptive father and after his death till the death of the adopted son, the adopted son has been treated and has behaved as the only heir of the adoptive father and dealt with the properties of the adoptive father without any controversy. 12. In the case of Vothoba Bhanji V. Vithal Sakroo, AIR 1958 Bom. 270 , adoption was being challenged after forty years and in that setting, the Court held that the fact that since 1913 the adopted son has throughout described himself and acted as an adopted son and was so accepted by various persons including the creditors and persons who took transfers of immovable property from him, was of considerable property from him, was of considerable importance and relevant to show that he was being regarded by everyone connected with him in business or otherwise as the adopted son. Those documents had been brushed aside by the trial court, but the High Court held that the documents were relevant in considering the question of adoption especially in a case where the adoption was being challenged after lapse of thirty years and having regard to the fact that considerable evidence must have disappeared during that time. This decision is, therefore, not a direct authority in support of contention of the learned counsel for the respondent that simply because of the case that the adoption is an old one just looking to the lapse of time, the court can hold that the onus of disproving the fact of adoption who challenges it. All the above evidence stretching over the period are to be placed and accepted. 13. All the above evidence stretching over the period are to be placed and accepted. 13. In the case of Harihar Rajguru Mohapatra v. Nabakishore Rajaguru Mohapatra, AIR 1963 Orissa 45, a Bench of this Court was considering the applicability of Sections 101 to 104 of the Evidence Act and in that connection it was held (para-12):- "The law is well settled that the evidence in support of adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging adoption. It is equally well settled that when there is a long lapse of years between the adoption, for the absence of such evidence to prove such fact must be favourably entertained, the reason being that after very long term of years, it is difficult to procure evidence. Admittedly, in this case there is no oral evidence of giving and taking. It is not also possible to procure such evidence after this long lapse of years. But evidence is available that Gopinath was being treated as the adopted son and this is apparent from Exts.5, 5/a of the year 1906, Exts. 6, 6/a of the year 1926 and Ext.3 of the year, 1951. So there is a long variety of transactions upon the footing that the adoption of Gopinath to Dasarathi was a valid act. In such circumstances, the burden rests very heavily upon defendant 5 who challenges its validity". It may be noted that in the aforesaid decision, the Court took into consideration that there was no oral evidence of giving and taking and further was not possible to procure such evidence after the long lapse of years. But where the evidence discloses that witnesses are available to prove giving and taking, the ratio of the aforesaid case, in my considered opinion, will not be applicable. 14. In the case of Smt. Pentapati Venkataraman V. Karri Venkatanarasayamma, AIR 1964 Andhra Pradesh 109, a Bench of Andhra Pradesh High Court was considering the case of an old adoption. In that case, the adoption was being challenged after lapse of more than forty years. 14. In the case of Smt. Pentapati Venkataraman V. Karri Venkatanarasayamma, AIR 1964 Andhra Pradesh 109, a Bench of Andhra Pradesh High Court was considering the case of an old adoption. In that case, the adoption was being challenged after lapse of more than forty years. There was also direct evidence of D.W.12 who was about 80 years old on the date when she gave evidence and stated on oath that the adoption took place in accordance with the ceremony of giving and taking and she had witnessed the same being invited to the ceremony. The trial Court as well as the High Court had accepted the said evidence and came to hold in favour of adoption. 15. In the case of Gouranga Sahu V. Bhaga Sahu, AIR 1976 Orissa 43, S.K. Ray, J (as His Lordship then was) was considering the case of an old adoption and also the burden of proof and the mode of appreciation of evidence thereto. In paragraph 6 of the judgment, His lordship held:- "........... So, even though the normal rule is that one who seeks to deflect the natural line of succession to property by alleging adoption must discharge that heavy burden, in cases of ancient adoption every allowance for the absence of evidence to prove such fact must be favourably entertained. Where there is a long lapse of years between the adoption and the time when it is being questioned and during that period of interregnum a variety of transactions of open life and conduct upon the footing that the adoption was a valid act have taken place, the initial burden necessarily shifts to the person who challenges its validity............" After applying the law laid down as above to the facts of that case, his Lordship held :- "........... Considering: the entire evidence on record, both documentary and oral, and the variety of transactions of open life and conduct upon the footing of adoption coupled with the weakness of the defence evidence, and absence of any caste-man or relative coming forward in support of the defence case, it is impossible to say that the plaintiff is the adopted son of Mohana is erroneous …………" From the said judgment, it is not quite clear as to what was the evidence which His Lordship has considered in coming to the aforesaid conclusion. 16. 16. A conspectus of the aforesaid authorities unequivocally lays down rule that a person who claims title on the basis of adoption must prove the adoption and it has to be established that the essential ceremony of giving and taking did take place, That burden however, shirts to the person who challenges the adoption to disprove the adoption when on account of long lapse of years, direct evidence of giving and taking has disappeared, but there remains the evidence of varieties of transactions in open life and conduct upon the footing of adoption, the acceptance as such for all these years and other events happening in normal course of life. But if direct evidence is available or it somehow even comes out during trial and shown, then the burden would not shift and the person who claims title on the basis of adoption must discharge that hearing burden. 17. The method of appreciation of evidence regarding an old adoption, however, is not that strict as in the case of a recent origin. The Privy Council in the case of Tammanna Shivppa Kori V. Parappa Girimallappa Kori, AIR 1945 PC 111 , affirmed the judgment of the High Court. In that case, the trial court had disbelieved the evidence of adoption on the ground that it was discrepant in many materials. The High Court had reversed that judgment. The Privy Council while affirming the judgment of the High Court observed as follows:- "......They (discrepancies) were mainly discrepancies to the respective positions occupied by the parties and witnesses during the ceremony in the house where it took place; but all the witnesses agreed as to the vital facts necessary to establish an adoption. .... Their Lordships agreed with the learned judges of the High Court in thinking that in the circumstances there was not sufficient ground for rejecting the evidence in support of the adoption ceremony, and that the discrepancies in such evidence can be explained by the length of time which had elapsed between the ceremony and the date when the witnesses were called upon to give evidence........" 18. It is the settled position of law that mere creation of document in support of prior adoption cannot be the substitute of the actual evidence of giving and taking with regard the alleged adoption. It is the settled position of law that mere creation of document in support of prior adoption cannot be the substitute of the actual evidence of giving and taking with regard the alleged adoption. Onus lies on the person who claims adoption to prove the same by leading clear, cogent and acceptable evidence with regard to the factum of giving and taking ceremony. This onus resting on that party is required to be discharged independently of any document. In the absence of evidence of actual giving and taking of the child even the presumption arising out of a registered document acknowledging the factum of adoption said to have taken place at any anterior date without detail recitals regarding giving and taking of the child is not enough to hold in favour of adoption. In fact in the absence of such recital on the vital aspect of adoption and upon which it is founded in that document, the same in my considered view can neither be said to be a deed falling within the purview of section 16 of the Hindu Adoption & Maintenance Act. What is acknowledged after is adoption and the adoption when is said to be by giving and taking, it has to find indicated clearly in the document. 19. Plaintiff No.2 have been examined as P.W.1 and one P.W.2 to prove the adoption of defendant No.1 by late Jayakrushna and Kshetri. Plaintiff No. 2 being examined as P.W. 1 has stated that his brother defendant No.1 was born in 1952 and on his 21st day of birth function being held in the house during then their natural parents gave away defendant No. 1 to Jayakrushna and his wife who accepted by taking him their adopted son. His evidence is that he was born in the year, 1949 and passed matriculation in the year, 1968. Thus he is being a boy of the age of about 3 years coming to depose about factum of giving and taking of defendant No. 1 by his natural parents to the adopted parents can is not believable when it is extremely unnatural that a boy of that age seeing the same would be remembering to depose it after such a long lapse of time in a suit of the year, 1990 and that too in the year 1998. This does not stand for acceptance. This does not stand for acceptance. Next evidence is that of P.W.2 who claims to have accompanied his father to the house of Jayakrushna on that day when the function was being held and that was the function of 'Namakarana' of defendant No.1. From the beginning his evidence as it stand, if accepted gets a jolt that as per his version, he had not gone to attend the function of adoption but one which is usually held on the 21st day of birth of a child. So on that day suddenly the ceremony of adoption would be taking place after calling others for Namakaran ceremony appears to be quite doubtful. He also states to have seen the giving and taking. The witness further states to have been born in the year, 1948. That shows he is the deposing about the fact which he claims to have seen when he was aged about 4 years. The same criticism remains with regard to remembrance of all these things by a child of 4 years so as to depose in the year, 1998, when also this P.W. 2 is not able to state the age of Sachidananda and Jayakrushna at that time. His further evidence on oath is most interesting to be taken note of that P.W.1 was aged about 2 to 3 years by then. So here is a case where the plaintiffs have led direct evidence for proving the factum of giving and taking. Thus they do not come forward that it being an ancient adoption no such direct evidence is available to be given to prove the fact of giving and taking and despite of possible efforts they could not search out the same and therefore they are relying simply on the conduct of the parties, the relationship, the acceptance of the boy in the society as well as by the relation, open life transactions if any etc. by leading evidence on those scores. The lower appellate court thus is found to have committed error of law by terming it to be an ancient adoption in applying the principle of appreciation of evidence as in case of an ancient adoption. It has also erred by stating that it being an ancient adoption actual evidence of giving and taking may not be available. The lower appellate court thus is found to have committed error of law by terming it to be an ancient adoption in applying the principle of appreciation of evidence as in case of an ancient adoption. It has also erred by stating that it being an ancient adoption actual evidence of giving and taking may not be available. By doing so the lower appellate court has not gone to explain away the unbelievable evidence which is not permissible. The party having led the evidence and that being wholly unacceptable, it's no more the duty of the court to find out explanation. So, the approach of the lower court is wholly faulty and not in consonance with law. 20. At this stage there arises the consideration as regards the weightage that the document. Ext. 7 which is a registered deed of acknowledgement of adoption indicating therein that there was adoption of defendant no.1 would carry. Sec.16 of Hindu Adoptions and Maintenance Act reads that whenever any document registered under any law for the time being in force is produced before any court to record an adoption made and is signed by the person giving the person and taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved. Admittedly, Jayakrushna was not alive when Ext. 7 come into being. Similarly Sachidananda the natural father of defendant No. 1 is not a party and; being not a signatory as an executants to the said document. However, he has accorded his approval with necessary endorsement and signature with regard to the fact of adoption of defendant No. 1. To this of course no exception can be taken since the law is clear that he must be a signatory in the document. So natural father of defendant No. 1 namely, Sachidananda having put his signature on Ext. 7, it's sufficient compliance of the provision of Sec. 16 of the Act. But the whole question is that this Ext. 7 does not find mention about the factum of giving of Defendant No. 1 for adoption by his natural parents and taking in adoption by adoptive parents. It is also not indicated that on the 21st day birth of defendant No. 1 such adoption was made nor even any date of adoption is stated therein. 7 does not find mention about the factum of giving of Defendant No. 1 for adoption by his natural parents and taking in adoption by adoptive parents. It is also not indicated that on the 21st day birth of defendant No. 1 such adoption was made nor even any date of adoption is stated therein. These being important facts of adoption are absent in the document which is a deed of acknowledge of adoption. The details of adoption with reference to the date is required to be indicated and also the giving and taking which is actually acknowledged by the parties to the document. So simply stating that defendant No. 1 is the adopted son is not going to serve any purpose. These aspects appear to have been completely kept aside by the lower appellate court. So when there is no acceptable evidence with regard to the giving and taking to prove adoption and the plaintiffs have thus failed to discharge the burden of prove on that count, the document Ext. 7 simply finding the description of defendant No. 1 as the adopted son of Jayakrushna and the other two Ext.8 and Ext.9, two sale deeds are not sufficient to hold that the plaintiffs have discharged the heavy burden of proof. Ext. II the voter list is practically of no such significance when there remains no evidence in the light of the provisions of section 50 and Sec. 60 of the Evidence Act. It is also seen that plaintiffs have not laid any evidence in that light also. In case of Dolagobinda Paricha Vrs. Nimai Charan Misra and others, AIR 1959 SC 914 the scope and applicability of Section 50 and 60 of the Evidence Act have been clearly stated." It has been stated that if a person fulfills the conditions laid down in the latter part of Sec. 50 i.e. if he is a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship, then what is relevant is his opinion expressed by conduct. 'Opinion' means something more than a mere retailing of gossip or of hearsay; it means judgment or belief, i.e. a belief or a conviction resulting from what one thinks on a particular question. The belief of conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or the opinion. 'Opinion' means something more than a mere retailing of gossip or of hearsay; it means judgment or belief, i.e. a belief or a conviction resulting from what one thinks on a particular question. The belief of conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or the opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and, may, therefore, be proved. The conduct or outward behaviour must be proved in the manner laid down in section 60 of the Evidence Act. The conduct must be of the person who fulfills the essential conditions of Sec. 50". Applying the above, when the evidence of the witnesses examined on behalf of the plaintiffs are examined, it is found that those do not satisfy the tests so as to be held in favour of plaintiffs that the burden of proving the factum of adoption has been duly discharged. 21. For the aforesaid discussion, the finding of the lower appellate court that the defendant no.1 is the adopted son of Jayakrushna and Kshetri is held to be based on perverse appreciation of evidence being the outcome of a faulty approach made from the beginning which does not have the sanction of law. The aforesaid thus leads this Court to affirm the finding of the trial court that the defendant no.1 is not the adopted son of Jayakrushna and Kshetri and that the plaintiff has utterly failed to discharge the onus in proving the same by leading satisfactory evidence for the Court to accept such a plea. 22. This takes us to the next question with regard to the issue of previous partition. It is again the submission of the learned counsel for the appellants that such a finding that there was no prior partition as rendered by the lower appellate court is perverse being based on erroneous appreciation of evidence on record and also on an erroneous view point of law. He contends that the finding of the trial court on the score is just and proper. 23. Learned counsel for the respondents, on the other hand, contends that the error of law committed by the trial court has rather been rectified by the lower appellate court by since it was so rendered by the trial court ignoring the documents (Exts. He contends that the finding of the trial court on the score is just and proper. 23. Learned counsel for the respondents, on the other hand, contends that the error of law committed by the trial court has rather been rectified by the lower appellate court by since it was so rendered by the trial court ignoring the documents (Exts. A and B) for the purpose of arriving at a conclusion that there has been prior partition. It is the settled position of law that there remains a presumption that a Hindu family remains joint till the contrary is proved. The parties may remain separate for the purpose of convenience but that itself cannot be equated with a case of partition between the parties in metes and bounds. In the case in hand, the defendants have taken the plea that there was previous partition amongst five sons of Rama Chandra. So, rightly the burden of proof is placed on them to establish, more so on the face of the joint recording of the land in Major Settlement records. The defendants have projected the document (Ext. A) nomenclatured as Panchayat Bantan Patra dated 15.01.1964 showing separate allotment of joint family properties in favour of the parties thereto. This has been given maximum importance by the trial court and taken together with the admission of the plaintiff no. 2 with regard to the execution of Bantan Patra when that very document has been proved through the plaintiffs witness P.W.2, who has gone to prove the signature of four other brothers, the trial court has held that there was prior partition accordingly. The plaintiffs in their plaint have denied the partition in presence of Bhadra Lokas as on 16.01.1964. However that has been indicated in the sale deeds in favour of defendant nos.12 to 19. Now on the face of above discussed evidence, the lower appellate court without assigning any reason as to whether those are sustainable in the eye of law or not has abruptly jumped to a conclusion that the same has not been acted upon just because in the Major Settlement record of right joint recording stands and that has been wholly banked upon and thus accepted to discard all other evidence including the evidence of dealing with the properties since the year 1964 onwards continuously. As I find that when the trial court has taken some exception as the plaintiffs having not pleaded Ext.A to be nominal one, not intended to act upon or executed with ulterior purpose, taking a cue from that the lower appellate court has found out the debarment to be there with the defendants to challenge the said document and for that it has gone to whittle down all those reasoning's of the trial court. In order to give justification, the lower appellate court appears to have made an attempt by posing some question so as to nullify the effect of Ext. A. 24. Thus, I find the findings of the lower appellate court on those scores to be perverse and it is held that without any legal justification, the findings of the trial court have been set at naught. Therefore, this Court restores the findings of the trial court and the ultimate result of dismissal of the suit. The substantial question of law as framed are accordingly answered. 25. In the upshot of the above discussion, the appeal is allowed and in the peculiar facts and circumstances of the case without cost. The suit of the plaintiffs is hereby dismissed. Appeal allowed.