APPEAL FROM APPELLATE DECREE No. 22 OF 2002 (Against the judgment and decree dated 12.09.2001 passed by Sri Mahendra Narayan Singh, 3rd Additional District Judge, Bhagalpur in Title Appeal No.91 of 1996 confirming the judgment and decree dated 27.07.1996 passed by Sri D.K. Lal, 7th Subordinate Judge, Bhagalpur in Title Suit No.36 of 1989) Bhagwat Prasad Bhagat @ Bhagwati Bhagat son of Late Mathura Prasad Bhagat, resident of village Khajuriya, P.O. Silhan, P.S. Sanhaula, District Bhagalpur…………………………Plaintiff-Appellant-Appellant. Versus 1. Shankar Bhagat son of Late Mohan Lal Bhagat, P.O. Hariyani, P.S. Poraiya, District Godda. 2. Manorama Devi wife of Satya Bhagat 3. Tun Tun Devi wife of Kuldeo Bhagat, both residents of village Panjwara, P.O. and P.S. Panjwara, District Banka. 4. Budhni Devi wife of Hari Mohan Bhagat, resident of village Chapari, P.O. and P.S. Dhoraiya, District Banka. 5. Ramakant Bhagat 6. Dilip Kumar Bhagat, both sons of Mathura Prasad Bhagat and both residents of village Khajuria, P.O. Silhan, P.S. Sanhaula District Bhagalpur…………………Defendants-Respondents 1st set-Respondents. 7. Dwarika Prasad Bhagat 8. Rajendra Prasad Bhagat 9. Nirmal Kumar Bhagat, sons of Late Mathura Prasad Bhagat and residents of village Khajuriya, P.O. Silhan, P.S. Sanhaula, District Bhagalpur. 10. Savita Devi daughter of Late Mathura Prasad Bhagat, and wife of Kapil Bhagat, resident of village Panjwara, P.S. Panjwara District Banka. 11. Manti Devi daughter of Late Mathura Prasad Bhagat, and wife of Ramanand Bhagat, resident of village Sabailpur, P.O. Sabailpur, P.S. Bausi, District Banka……………Defendants-Respondents 2nd set-Respondents. For the appellant : M/s Ganpati Trivedi and Dev Kumar Pandey, Advocates. For respondent nos.5 & 6 : M/s Shyam Bahadur Prasad, Nikki Singh and Rashmi Kumari, Advocates. P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN S.N. Hussain, J. This second appeal has been filed by the sole plaintiff-appellant-appellant against the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit No.36 of 1989 which was filed by the sole plaintiff-appellant, with respect to the suit properties fully detailed in Schedule-A of the plaint, for the following reliefs:- 2 (i) A decree of partition of the suit properties to the extent of 1/7th share of the plaintiff. (ii) A declaration that Revisional Survey Entry in the name of defendant no.1 was wrong, illegal and not binding on plaintiff and order passed by the Charge Officer, Bhagalpur in Rev. Case No.03 of 1988 is also wrong, illegal and not binding on plaintiff and is fit to be set aside as annulled. (iii) Plaintiff be put in separate possession of the share allotted to him to the extent of 1/7th share in the suit property. (iv) Cost and such other relief or reliefs which the court may deem fit under the facts and circumstances of the case be allowed to plaintiff. (v) Preliminary decree and final decree and on the execution of the same, plaintiff be allotted and put in possession of his 1/7th share through the process of court, by appointment of a survey knowing Pleader Commissioner. 3. The claim of the plaintiff was that his grand father, namely Parmeshwar Dayal Bhagat had ancestral properties and had also acquired the suit properties in the name of his youngest son Mathura Prasad Bhagat (father of plaintiff) vide registered sale deed dated 01.11.1943 (Ext.2). It was also claimed that with respect to the ancestral properties (not in suit) there was a registered deed of partition dated 15.01.1947 (Ext.1) between the coparceners, i.e. Parmeshwar Dayal Bhagat, his four sons, including Mathura Prasad Bhagat and four sons of Mathura Prasad Bhagat, namely the plaintiff, defendant no.2, defendant no.3 and defendant no.4, who were born prior to the deed of partition, according to which all the ancestral properties were partitioned among them, but the suit property, being the exclusive property of Mathura Prasad Bhagat, was not included in the said partition. A genealogy of the family was provided by the plaintiff in paragraph-2 of the plaint. 4. It was also claimed by the plaintiff that Mathura Prasad Bhagat had two wives and from his first wife Domni Devi he had only one son, namely the plaintiff, whereafter Domni Devi died, whereas from his second wife Yashoda Devi (defendant no.1) he had five sons, namely, defendant nos.2, 3, 4, 5 and 6 out of whom defendant nos.2, 3 and 4 were born before the aforesaid deed of partition of 1947 (Ext.1) and defendant nos.5 and 6 were born after it. Plaintiff’s further case 3 was that Mathura Prasad Bhagat died in the year, 1967 leaving behind all the above named persons impleaded in the plaint as his heirs and legal representatives as per the provisions and Schedule of the Hindu Succession Act 1956 (hereinafter referred to as the Act for the sake of brevity) according to which the plaintiff had 1/7th share in the suit property which he wanted to get partitioned, but it was recorded in the revisional survey in the name of defendant no.1 deleting the name of the plaintiff and his cases before the revenue authorities were also rejected. Hence this suit. 5. On the other hand, only defendant nos.1, 5 and 6 contested the suit by filing their written statement claiming that the plaintiff, defendant no.2, defendant no.3 and defendant no.4 had absolutely no right, title or interest in the suit property. The genealogy given by the plaintiff was not fully accepted and a modified genealogy was given in the written statement which is as follows:- Parmeshwar Dayal Bhagat Mathura Prasad Bhagat Domni Devi(1st wife) = = Yashoda Devi(2nd wife)(D.1) Bhagwat Pd. Dwarika Pd. Rajendra Pd. Nirmal Kr. Ramakant Dilip Kr. Bhagat Bhagat Bhagat Bhagat Bhagat Bhagat (Pl.) (D.2) (D.3) (D.4) (D.5) (D.6) 6. It was claimed by the said defendants that the suit property was purchased by Mathura Prasad Bhagat by registered sale deed dated 01.11.1941 (Ext.2) from his own income and his name was accordingly mutated. It was also averred that at the time of partition vide registered deed of partition dated 15.01.1947 (Ext.1) all the coparceners, including Mathura Prasad Bhagat and his four sons, namely the plaintiff and defendant nos.2, 3 and 4 separated getting their exclusive shares and hence plaintiff and defendant nos.2, 3 and 4 could not legally have any share or claim in the property of Mathura Prasad Bhagat. Further claim of the said defendants was that defendant no.5 and 6 were born to defendant no.1 after the said partition of 1947 and hence they remained with Mathura Prasad Bhagat forming a new joint family with Mathura Prasad Bhagat, after whose death in 4 1967 the suit property was inherited by defendant no.1, 5 and 6 as his heirs and legal representatives and defendant no.1 was rightly recorded in the record of rights and the authorities concerned were quite justified in rejecting the claim of the plaintiff and even C.W.J.C. No.6771 of 1988 filed by the plaintiff was dismissed by the High Court on 06.12.1989. 7. After considering the respective pleadings of the parties, the learned trial court framed the following issues for deciding the title suit:- (i) Is the suit as framed maintainable? (ii) Whether the plaintiff has valid cause of action for the suit? (iii) Whether the suit is barred by limitation? (iv) Whether the suit is barred under section 106, 109 of the B. T. Act? (v) Whether the suit is barred by res-judicata? (vi) Whether the suit is hit by section 34 of the Special Relief Act? (vii) Whether the suit is bad for non-joinder of parties? (viii) Whether the suit is defective for mis-joinder of parties? (ix) Whether the genealogical table given in the plaint is correct? (x) Whether suit properties are joint family properties of the plaintiff and defendants? (xi) Whether there is unity of title and possession between the parties in respect of the suit properties? (xii) Whether the plaintiff is entitled to get 1/7th share in the suit property as claimed? (xiii) Whether the plaintiff is entitled to get declaration that the survey entry in respect of the suit property is erroneous, wrong, illegal and not binding upon the plaintiff? (xiv) Whether the plaintiff is entitled to the decree as claimed? (xv) To what relief or reliefs is the plaintiff entitled? 8. On the aforesaid issues evidence were led and arguments were made by both the contesting parties whereafter the learned 7th Subordinate Judge, Bhagalpur dismissed the title suit on contest vide his judgment and decree dated 27.07.1996 after arriving at the following findings:- (a) Genealogy given in the written statement stands proved to be correct. (b) Suit is maintainable and plaintiff has chosen a right forum to vindicate his claim. (c) Certified copy of order (Ext.3) of High Court passed in the writ case shows that the Hon’ble Court had dismissed the writ petition as withdrawn with observation that the petitioner may institute a title suit for declaration as may be necessary. 5 (d) None of the family members has come forward to support the claim of the plaintiff and the witnesses examined on his behalf are incompetent. (e) There is no document in support of the joint possession of the plaintiff and others with respect to the suit properties since the partition of 1947. (f) Suit properties were not included in the partition of 1947 and hence it was not treated as joint family property. (g) It is admitted that Mathura Prasad Bhagat died in 1967, but neither in his life time nor after his death any claim was raised and only after the survey operation such claim was raised by plaintiff. (h) Suit property was acquired by Ext.2 (Ext.B) on 01.11.1943 by Mathura Prasad Bhagat, who paid the consideration vide receipt (Ext.A). (i) Non-inclusion of suit property in the partition of 15.01.1947 (Ext.1) shows that it was not joint family property, rather it was exclusive property of Mathura Prasad Bhagat. (j) Oral evidence of defendants as well as order of survey settlement authorities clearly proved possession of defendant nos.1, 5 and 6 after the death of Mathura Prasad Bhagat. (k) Merely because plaintiff is the son of Mathura Prasad Bhagat, he cannot be entitled to a share in the suit property as his share has already been carved out in 1947 by Ext.1. (l) Plaintiff was separated from Mathura Prasad Bhagat since 1947, hence he would not be entitled to any share in the property acquired by his father, namely Mathura Prasad Bhagat. (m) Other sons of Mathura Prasad Bhagat (defendant nos.2, 3 and 4) did not lay any claim in the suit property. (n) Suit property is coming in possession of the contesting defendants as personal property of Mathura Prasad Bhagat and plaintiff has no share therein, hence there is no unity of title and possession between the parties and there is no question of partition. (o) In view of the above findings entry made in the survey khatian is correct and binding upon the plaintiff as per Ext.4, 5 and 6. (p) Revenue appeal was decided in 1988 and the suit was filed in 1989, hence it is not barred by the Law of Limitation. 6 (q) Plaintiff is liable to pay court fee of Rs.1,00,000/- which is the valuation of the suit property. (r ) Plaintiff has no valid cause of action for the suit, which is not maintainable as framed and hence plaintiff is not entitled to get the decree as claimed. 9. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No.91 of 1996, but the learned court below did not frame any point for deciding the title appeal on the basis of the pleadings of parties, nor even he referred to any issue framed in the title suit, which he deemed to be appropriate for deciding the dispute between the parties. 10. However, after hearing the arguments of learned counsel for the parties and after perusing the evidence produced by them, the learned 3rd Additional District Judge, Bhagalpur dismissed the title appeal on contest by his judgment and decree dated 12.09.2001 after arriving at the following findings:- (a) In his entire pleading the plaintiff had not stated that when according to him Parmeshwar Dayal Bhagat had purchased the suit property in the name of Mathura Prasad Bhagat, how it became the exclusive property of Mathura Prasad Bhagat, hence according to the claim of the plaintiff the suit is bad for non-joinder of necessary parties i.e. other co-sharers. (b) The claim of plaintiff has not been supported by any of the descendants of Parmeshwar Dayal Bhagat, whereas the claim of the contesting defendants has been supported by PWs.1 and 9, who are the descendants of Parmeshwar Dayal Bhagat. (c) From the evidence of the parties it was quite apparent that the suit property was not of Parmeshwar Dayal Bhagat. (d) The suit property was also not acquired by Mathura Prasad Bhagat. (e) It transpires that after the partition of 1947, Parmeshwar Dayal Bhagat sympathetically gave the suit property to the joint family of Mathura Prasad Bhagat and his two sons (defendant nos.5 and 6), who were born after the said partition. (f) The said fact is proved that none of the heirs of Parmeshwar Dayal Bhagat and none of the other sons of Mathura Prasad Bhagat, except the plaintiff, had raised any claim over the suit property. 7 (g) Plaintiff has legally got no share in the suit property. (h) There is no defect or illegality in the impugned judgment of the trial court. 11. Against the aforesaid judgments and decree of the learned courts below the plaintiff filed the instant second appeal which was admitted by this court on 16.05.2003 after formulating the following substantial questions of law:- (i) Whether the courts below committed error in not construing the suit property to be a separate property and as such not construing the provision of section 8 of the Hindu Succession Act? (ii) Whether the courts below committed error even if not construing the suit property to be separate property but partition being denied on the ground of limitation? (iii) Whether the appellate court committed error in finding out a third case which was nobody case? (iv) Any other substantial question of law that may be raised at the time of hearing of the appeal? 12. When the instant second appeal was taken up for final hearing, on 13.04.2009 learned counsel for the appellant, before starting his arguments, filed another substantial question of law for being considered along with the above substantial questions of law, which is as follows: (v) Whether the court of appeal below has failed to discharge its duty entrusted by the Legislature under Order XLI Rule 31 of the Code of Civil Procedure because while writing the judgment it did not mention the points which the case raises, nor did it advert to the issues formulated by the trial court? 13. Learned counsel for the appellant argued that there being no dispute with regard to the genealogy and there being also no dispute with regard to the purchase of the suit property by registered sale deed dated 01.11.1943 (Ext.2) in the name of Mathura Prasad Bhagat and furthermore there being no dispute with regard to partition of ancestral properties between Parmeshwar Dayal Bhagat, his four sons, including Mathura Prasad Bhagat as well as four sons of Mathura Prasad Bhagat, including the plaintiff, who had already been born before that date, vide registered deed of partition dated 15.01.1947 (Ext.1), the only dispute is that whether a separate property or self acquired property of Mathura Prasad Bhagat can also devolve upon his separated son, namely the plaintiff. He further submits that admittedly the suit property was the exclusive property of Mathura Prasad Bhagat 8 and hence after his death in the year 1967 it would devolve upon all his heirs, including his widow and sons irrespective of the fact that some of the sons have already separated. In this regard, he relies upon section 8 of the Act. 14. Learned counsel for the appellant further argued that the previous partition of 1947 (Ext.2) not being at the instance of the appellant, he cannot be legally precluded from inheritance even by survivorship on the basis of Explanation II of section 6 of the Act. It is also claimed that the suit property being acquired by Parmeshwar Dayal Bhagat in the name of Mathura Prasad Bhagat is clearly a gift from father to his son, who remained in exclusive possession thereof as absolute owner and none of the other children of Parmeshwar Dayal Bhagat objecting to it or ever raising any claim over it, the children of Mathura Prasad Bhagat cannot be deprived of succeeding the property after the death of Mahutra Prasad Bhagat, who was the exclusive owner of that property as even according to the defendants it was his self acquired property. 15. On the other hand, learned counsel for the respondents argued that after the death of a person notional partition under section 8 of the Act has to be presumed. He also avers that explanation II of section 6 is the crux of the entire dispute according to which a separated son is not entitled to inherit from his father after the death of the father. It is also argued that a son separated from the coparcenary would be governed by Explanation 2 of section 6 of the Act, which states that proviso to section 6 would not enable a son already separated from father to claim a share in the interest, hence he claims that in view of the specific provisions of law the plaintiff–appellant cannot be entitled to have any share in the property left by his father Mathura Prasad Bhagat. 16. So far substantial questions of law no (i) and (ii) are concerned, they are inter related and hence they are being taken up together. It is an admitted fact that the suit property was purchased from the original owner by registered sale deed dated 01.11.1943 (Ext.2/Ext.B) in the name of Mathura Prasad Bhagat. The claim of the contesting defendants was that it was the self acquired property of Mahtura Prasad Bhagat, whereas the claim of the plaintiff was that it was purchased by Parmeshwar Dayal Bhagat in the name of Mathura Prasad Bhagat and hence it was 9 separate property of Mathura Prasad Bhagat. Hence, even according to the plaintiff it is clearly a gift from the father to his youngest son Mathura Prasad Bhagat, who admittedly remained in exclusive possession of the said purchased property as absolute owner thereof, specially when none of the other children of Parmeshwar Dayal Bhagat objected to it or ever raised any claim over the suit land. In this regard, reference may be made to a decision of the Hon’ble Apex Court in case of C.N. Arunachala Mudaliar V. C.A.Muruganatha Mudaliar and another, reported in A.I.R. 1953 SC 495. 17. In the said circumstances, both the contesting parties have admitted that the suit property was the self acquired property of Mathura Prasad Bhagat either by way of gift as claimed by the plaintiff or by way of purchase as claimed by the contesting defendants. It is also an admitted fact that Mathura Prasad Bhagat through out his life time remained in exclusive possession of the suit property as its absolute owner without any objection either from his father or from his brothers or from his sons or from any one else. The said fact is also supported by the registered deed of partition dated 15.01.1947 (Ext.1) in which the entire ancestral property of the family was partitioned between all the coparceners of the family, namely Parmeshwar Dayal Bhagat, all his sons, including Mathura Prasad Bhagat as well as all the sons of Mathura Prasad Bhagat who were born till that date, including the plaintiff, but the instant suit property was not included in that partition clearly because it was not part of the coparcenary, rather it was the exclusive self acquired property of Mathura Prasad Bhagat and remained as such till his death on 15.01.1967 and hence the suit property had to devolve upon his heirs and legal representatives as per the rule of succession provided under the Act. 18. From the impugned judgments of the learned courts below it is quite apparent that the learned courts below have confused the matter and had failed to realise that there were two types of properties; the fist was the ancestral property which in the year 1947 belonged to all the surviving coparceners, namely Parmeswar Dayal Bhagat, his sons including Mathura Prasad Bhagat and the four born sons of Mathura Prasad Bhagat, including the plaintiff and the said coparcenary property was admittedly partitioned among them by registered deed of 10 partition dated 15.01.1947 (Ext.1) executed by all of them, whereafter the said coparcenary ended and all the coparceners got separated with their respective shares in those properties. The share received by Mathura Prasad Bhagat in the said partition of 1947 is not the subject matter of this litigation. 19. The second type of the property is the admitted self acquired property of Mathura Prasad Bhagat, which had no concern with the aforesaid coparcenary or the partition of 1947 and had admittedly remained exclusive property of Mathura Prasad Bhagat till his death in the year 1967 and only this property is involved in the instant litigation. In the said circumstances, the said suit property being the exclusive property of Mathura Prasad Bhagat who died much after 1956, the question of its inheritance has to be governed by the provisions of the Act only. 20. In the said circumstances the main issue to be decided in this case is that whether the self acquired property of Mahtura Prasad Bhagat can devolve upon his son, namely the plaintiff who had already separated as far back as in the year 1947. In this regard, section 6 and section 8 of the Act are necessary to be considered in the facts and circumstances of this case. Section 6: When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshra coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1: For the purposes of this section the interest of a Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2 : nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. This section may be read with sections 8 and 30 of the Act. 11 Section 8:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 21. According to the provisions of the Act the old order of inheritance by survivorship had been changed to