FIRST APPEAL No.606 OF 2000 Against the judgment dated 31.08.2000 and the decree signed on 14.9.2000 by Sri A.K. Sinha, 4th Subordinate Judge, Chapra in Partition Suit No. 187 of 1995. MISHRI LALL RAI. ………… Plaintiff-Appellant Versus CHANDESHWAR RAI & ORS .……….. Defendants-Respondents ******** For the appellant : Mr. S.R.P. Sinha, Sr. Advocate Mr. Kapil Deo Singh, Advocate Mr. Vijay Kumar, Advocate For the respondent : Mr. Subodh Kumar Sinha, Advocate Dated : 9th day of November, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal is directed against the judgment dated 31.8.2000 and the decree following thereupon signed on 14.9.2000 by Sri A.K. Sinha, the learned 4th Subordinate Judge, Chapra in Partition Suit No. 187 of 1995 dismissing the appellant’s suit for partition. 2. The plaintiff filed the aforesaid suit claiming 1/6th share in schedule 1 and schedule 2 property. According, the plaintiff, Khedan Ram and Bhardual Rai were brothers. Khedan Rai had three sons Rajwanshi, Sukan and Chaitu. Bhardual Rai had a son Jaleshwari Rai. In the recent survey, the suit properties were recorded in the name of Rajwanshi, Sukan and Chaitu. Chaitu died issueless after R.S. in jointness with his brothers. Rajwanshi has three sons namely, Sagar, Mungeshwar Sahoo, J. -2- Dhyan and Sita. Out of them Sita died issueless. Sagar had a son Agam who in term has five sons who are defendant Nos. 1 to 5. Sukan Rai had four sons namely Raghunandan, Bheekham, Ram Ratan and Ram Prasad. Plaintiff is the son of Raghunandan. The four sons of Ram Prasad are defendants 2nd set. 3. The plaintiff’s further case is that there had been partition between Khedan and Bhardual Rai and in the Khatiyan one share was recorded in the name of Jaleshwari Rai, son of Bhardual Rai and the other share was recorded in the name of three brothers Rajwanshi, Sukan and Chaitu. The properties of the three brothers have been mentioned in schedule 1 of the plaint. Although there was separation in mess in the family in the year 1950 and they are cultivating the lands according to their convenience, there had been no partition between the parties. The plaintiff is feeling difficulty in joint possession so he requested the defendant Nos. 1 to 5 to partition the properties but they refused, so this suit was filed. 4. The defendant Nos. 1 to 5 appeared and filed a contesting written statement alleging that the genealogical table given by the plaintiffs is wrong. According to them Chaitu died leaving behind his widow Kamleshwari Devi and a daughter Rukmina. The further case is that during the recent survey there was separation in mess and cultivation and just after recent survey there was complete partition between Rajwanshi, Sukan and Chaitu. According to that partition the parties came in possession of the properties and on the death of Chaitu Rai his property devolved on his widow Kamleshwari and daughter Raukmina. Since Chaitu had no son, the father of the defendant Nos. 1 to 5 namely Agam Rai was looking after Kamleshwari so he was very closed to Kamleshwari. Because of the said fact, the other defendants instigated Rukmina and her husband against -3- Kamleshwari so they left looking after Kamleshwari, as a result of which Kamleshwari was very angry and refused to recognize Rukmina as her daughter. Subsequently, she executed a registered deed of gift in the year 1948 in favour of Agam Rai regarding 2 bigha 15 kattha 10 dhur and 13 dhurki lands. Agam Rai accepted the gift and came in possession. Subsequently, after the death of Kamleshwari the dispute between Agam and Rukmina was pacified and thereafter Rukmina came in close relation with Agam Rai and she also executed a registered deed of gift regarding her share in favour of Agam Rai in the year 1981. In view of the above facts, the entire share of Chaitu Rai came in possession of Agam Rai. Therefore, the branch of Rajwanshi have got 2/3rd share and the rest 1/3rd share belongs to the branch of Sukan. 5. The defendants 2nd set filed the written statement supporting the plaintiff’s case and they alleged that Rukmina was the daughter of Rajwanshi and not of Chaitu. They also alleged that Chaitu died in 1934 and, therefore, Kamleshwari was only entitled for maintenance and had no right to execute gift deed in favour of Agam in 1948. 6. In view of the above pleadings, the learned court below framed the following issues : “(1) Is the suit as framed maintainable ? (2) Has the plaintiff got any cause of action for the suit ? (3) Is the suit time barred ? (4) Is there unity of title and unity of possession between the parties ? (5) Has the properties been partitioned among the parties ? -4- (6) Is Rukmina daughter of Chaitu Rai ? (7) Is the deed of gift executed by Most. Kamleshwari in favour of Agam Rai genuine ? 7. After trial the learned court below came to the conclusion that their had already been partition between three brothers Rajwanshi, Sukan and Chaitu after survey. The learned court below also came to the conclusion that after death of Chaitu the property devolved on his widow Kamleshwari and Rukmina who gifted the property to Agam Rai and, therefore, dismissed the plaintiff’s suit for partition. 8. The learned Senior counsel Mr. S.R.P. Sinha, appearing on behalf of the appellant submitted that the learned court below has wrongly dismissed the plaintiff’s suit for partition to the extent of 1/6th share. The learned counsel submitted that the defendants have not stated in their written statement about the properties mentioned in the schedule of the plaint that in whose share the said properties was allotted in so called partition. The learned counsel further submitted that according to the plaintiff’s case the parties were separate in mess and were cultivating the lands according to their convenience therefore, in absence of specific evidence regarding partition the learned court below should have decreed the plaintiff’s suit. The learned counsel further submitted that Chaitu died issueless and Rukmina was not his daughter rather she was the daughter of Rajwanshi because Kamleshwari in the registered deed of gift stated that she had no issue but the learned court below accepted the defendants’ case. The learned counsel further submitted that because Chaitu Rai died in 1934 therefore, Kamleshwari had no right to transfer the property in favour of Agam Rai in the year 1948 and likewise since Rukmina was not the daughter of Chaitu she has also -5- no right to gift the property in 1981 in favour of Agam. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s suit be decreed. 9. The learned counsel Mr. Subodh Kumar Sinha appearing on behalf of the contesting defendants-respondents submitted that there is no illegality in the impugned judgment and decree. According to the learned counsel there had already been separation in mess and cultivation during the recent survey and just after recent survey there was absolute partition of the suit property and according to that partition the three brothers Rajwanshi, Sukan and Chaitu came in separate possession. Subsequent to partition Chaitu died and, therefore, his property devolved on his widow and daughter namely Kamleshwari and Rukmina respectively. The learned counsel further submitted that the defendants have produced documentary evidences to prove that their had been partition between the three brothers and there was also inter se transaction between the parities. The parties were dealing the properties separately and in the boundary of the property sold the names of the different branches were mentioned. Considering the admitted fact that the parties are separate in mess and cultivation and there was inter se transaction between the parties, the learned court below came to the conclusion that there had already been partition between the three brothers. The learned counsel further submitted that the plaintiff has not pleaded that Rukmina is daughter of Rajwanshi. Had it been the case of the plaintiff, they should have mentioned the name of Rukmina as daughter of Rajwanshi in the genealogical table. Even the name of widow is missing in the genealogical table and the plaintiff very cleverly has not stated anything regarding Kamleshwari and Raukmina. According to the learned counsel the plaintiff suppressing these facts approached the -6- court with un-cleaned hand and, therefore, on this ground also he is not entitled for any relief. The learned counsel further submitted that there is no illegality in the impugned judgment and decree and, therefore, this first appeal is liable to be dismissed. 10. In view of the above contentions of the parities the points arises for consideration in this appeal are : Point No. 1- As to whether there had been partition between the three brothers namely Rajwanshi, Sukan and Chaitu after the recent survey or whether the parities have got unit of title and possession over the suit properties ? Point No.2- Whether Chaitu and Kaleshwari had a daughter Rukmina and the deed of gift executed by both of them in favour of Agam Rai is valid ? 11. According to the plaintiff’s case there had been partitioned between Khedan and Bhardual branch. The three brothers Rajwanshi, Sukan and Chaitu remained joint and Chaitu Rai died issueless after recent survey. There is no whisper regarding the widow of Chaitu namely Kamleshwari. There is no whisper regarding Rukmina as to whether she is daughter of Rajwanshi or daughter of Chaitu. The case made out in the plaint is that Chaitu died in joitness with his brothers and both the branch of Rajwanshi and Sukan are still joint. The further case is that the parties are separate in mess and cultivation since 1950 but there has been no partition by metes and bounds. 12. On the contrary the defendants specifically pleaded that there was separation in mess and cultivation between the three brothers during the recent survey and just after recent survey there was partition by metes and bound between the three brothers and -7- according to that partition the three brothers came in separate possession of the properties. 13. The parties have adduced the oral as well as documentary evidences in support of their case. 14. Under Hindu law there is a presumption of jointness and the onus to prove disruption in the joint family lies upon a party who sets of that plea. The said presumption of jointness can be rebutted either by direct evidence or course of conduct of the parties particularly, in a case when the alleged partition took place long time back. In the present case, the plaintiff has adduced evidence in the negative. The witnesses have only stated that there had been no partition. However, it may be mentioned here that according to the plaintiff himself the parties separated in mess and cultivation as far back as in 1950. PW 1 although has stated that there had been no partition between the parities but in the cross examination he has stated that there has been partition and likewise PW 1 in his cross examination stated that the parities are cultivating the lands separately half and half. PW 3 has only stated that there had been no partition. PW 4 is defendant 2nd set. He has not filed any written statement. He has also stated that there had been no partition. PW 6 is plaintiff himself. In his evidence he has stated that there has been no partition. Chaitu died issueless so his share vested on Rajwanshi and Sukan and the said property is still joint. He has stated that the widow of Chaitu namely Kamleshwari was only a maintenance holder. It may be mentioned here that as stated above there is no such pleading in the plaint. There is no pleading that Kamleshwari was maintenance holder. There is no pleading or evidence as to when Kamleshwari died. These are the only evidences of the plaintiff. -8- 15. On the contrary DW 1 is Rukmina Devi the daughter of Chaitu. She has stated that her father was separate from his brothers and was in separate possession of the properties after partition. DW 3 and DW 5 are co-villagers i.e. of village Khapasi where the suit properties are situated. They have stated that there had been partition. In addition to that DW 5 has stated that the father of Misri Lall namely Raghunandan had executed a sale deed in favour of him which he has proved as Ext. B. DW 12 is one of the contesting defendants namely Chandeshwar. He has stated that there had been partition between the three brothers by metes and bound after recent survey and still there are ridges. He has also stated that they are paying rent separately against the grant of rent receipt. He has also stated that there has been mutation 55 years ago separately. 16. The defendants have also adduced Ext. B series to show that the parties were dealing the properties separately and there is mutual transaction. Ext. B-1 is a sale deed executed by Reghunandan, the father of the plaintiff. From perusal of this sale deed it appears that in the boundary the name of Agam Rai appears. It further appears that the land of Khata No.38 was sold which is a suit property. Ext. B- 2 is a sale deed executed by Kishori branch of Sukan i.e. son of Ram Ratan (cousin of plaintiff). This Ram Kisori Rai sold the lands of Khata no. 38 in favour of Agam Rai the father of contesting defendants. In the said sale deed in the southern boundary of the property sold the name of Misri Lall Rai has been mentioned. Misri Lall is the plaintiff therefore, this sale deed is proof of inter se transaction. The branch of Sukan sold the property to the branch of contesting defendants and in the boundary name of plaintiff has been mentioned. Likewise in the other sale deeds Ext. B/2 B/3 and B/4 in the boundary the parties have been shown separately. In Ext. B/3 Misri Lall himself sold portion -9- of Khata No.38 the suit property and in the boundary the name of defendant Chandeshwar Rai has been mentioned. Likewise Ext. B/4 sold by Raghunandan name of Chaitu has been mentioned. 17. In view of the above evidences adduced by the parties now the facts emerge are that the parties are separate in mess and in cultivation for more than many decades. The parties were dealing the property independently i.e. they are selling the property to other persons and in the boundary the names of the other members of the family were shown. There are also inter se transactions between the parties. 18. In a decision reported in AIR 1971 Patna 215 Arjun Mahto Vs. Monda Mahatain a division bench of this Court has held that although separate mess and cultivation and independent transaction of the property by themselves independently no doubt not conclusive proof of the previous partition but cumulative effect of such fact may show that there had been a partition between the parties. In a decision reported in AIR1991 Patna 276 Patta Sahu vs. Heera Sahu it has been held at paragraph 42 as follows : “However, it is well known that although separate mess, separate residence, separate cultivation and separate transactions of the properties by themselves may not be conclusive proof of partition but taking into consideration the cumulative effect thereof, the same may lead to an interference of partition.” 19. In a decision reported in AIR 1977 Patna 59 Ram Bahadur Nath Tiwari vs. Kedar Nath Tiwari this court has held that separate transaction by members of the joint family may not by themselves established separation but mutual transaction between the members of the family stands on a entirely different footing and the -10- same furnish a very strong evidence of separation. Therefore, the above stated registered sale deed by Kisori in favour of Agam which is mutual transaction clearly proves that there was partition. 20. In view of the above discussions, I find that the defendants- respondents have been able to prove that there had been previous partition between the parties. The finding of the learned court below on these points is therefore confirmed. 21. The learned counsel for the appellant submitted that the defendants have not given the details of the property that in whose share which property fell in the said partition. So far this submission is concerned as stated above the plaintiff in the pleading as well as in the evidence admitted that the parties are cultivating the lands separately. It is not the case of the plaintiff that he is cultivating the lands or the branch of Sukan is cultivating less area of land than their share. I have found above that there had been partition after discussing the oral as well as documentary evidences. Merely because no details has been mentioned in the written statement, it cannot be said that there had been no partition. No doubt details have not been given in the written statement but there is specific pleading that there had been partition and the parties are in possession of the property according to that partition. That is the evidence also adduced by the defendant. I therefore, find no force in the submission of the learned counsel for the appellant. 22. So far the other point is concerned, there is no pleading in the plaint that Chaitu had a widow namely Kaleshwari. There is also no pleading that Chaitu had a daughter Rukmina. In the evidences the plaintiff stated that the widow of Chaitu was entitled for maintenance only. It may be mentioned here that in the written statement filed by the supporting defence this fact has been mentioned that Chaitu died -11- in 1934. Now let us accept this plea for the sake of discussion. Even if it is accepted that Chaitu died in 1934 then also the property will devolved on his widow and a daughter because as has been found above that there had been partition between the three brothers. The plaintiff has failed to establish that Rukmina is the daughter of Rajwanshi. There is no such mention in the plaint. In the genealogical table also she has not been shown as daughter of Rajwanshi. It appears that in the evidence the plaintiff admitted the fact that Kamleshwari was the widow of Chaitu. No such plea was there in the plaint. This proves that the plaintiff approached the court with un- cleaned hand. So far Rukmina is concerned she has been examined as DW 1. She claimed herself to be the daughter of Chaitu. In the evidence plaintiff denied that she is not the daughter of Chaitu. It appears that after considering the facts and circumstances and the evidences adduced on behalf of the defendants, the learned court below found that she is daughter of Chaitu. The plaintiff’s witnesses have only stated that she is not the daughter of Chaitu. On the contrary the defendants have adduced positive evidence in support of the fact that when Kamleshwari was angry with Rukmina she refused to recognize her as daughter. DW 1 and DW 12 have given positive evidence and their evidences are admissible under Section 50 of the Indian Evidence Act. I therefore, find that Rukmina is daughter of Chaitu. Since there was partition between the three brothers Kamleshwari and Rukmina inherited the property of Chaitu as stated above. There is no evidence as to when Kamleshwari died and she gifted the property in 1948. After coming into force Hindu Succession Act, 1956 she became absolute owner of the property inherited from her husband because there is no evidence that prior to 1956 she died. The defendants have adduced evidence that the dispute between Rukmina and the contesting defendants was compromised and -12- subsequently, Rukmina also executed a registered deed of gift regarding her share in favour of Agam. 23. In view of the above facts, I find that by the gift executed by Kamleshwari Devi and Rukmina the property of Chaitu was validly transferred in favour of Agam and therefore, the plaintiff has got no unit of title and possession over the property of Chaitu. The finding of the lower court on this point is hereby confirmed. 24. In view of above finding, I find no illegality in the impugned judgment and decree. In the result, this first appeal has got no merit and it is accordingly, dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 9th November, 2010 S.S./N.A.F.R.