IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.289 of 2007 1. MOST. BHULLI DEVI , widow of Late Batohi Prasad Mahtha, resident of village Parsauni, P.S. Bisfi, District Madhubani …. Appellant ….. Appellant 2. Smt. Rita Devi, Daughter of Late Batohi Prasad Mahtha, wife of Gouri Shankar Mahtha, R/o Bhupatii, P.s. Babu Barhi, District Madhubani. …. Appellant … Appellant ….. Appellants Versus 1. JAGJYOTI PRASAD MAHTHAL, Son of late Saryug Mahtha 2. Awadhesh Kumar Mahtha 3. Arvind Kumar Both sons of Jagjyoti Prasad Mahtha, resident of village Parsauni, P.S. Bisfi, District Madhubani …. Plaintiffs (Respondents Ist Party) .. Respondents 1st Party 4. Smt. Jairan Devi, widow of late Saryug Prasad Mahtha, resident of village Parsauni, P.S. Bisfi, District Madhubani 5. Smt. Parwati Devi, wife of Sukhdeo Mahtha of village Bhaiyapatti, P.S. Basopatti, District Madhubani 6. Smt. Dhandai Devi, W/o Gulab Prasad Mahtha of village Bhupatti, P.s. Babu Barhi, District Madhubani .. Defendants (Respondents 2nd Party) … Respondents 2nd Party … Respondents ----------- For the Appellants : Mr. H.K.Thakur, Advocate For the Respondent No. 1: Mr. Arun Kumar Sinha, Advocate 8 19.07.2010 Defendants – appellants are aggrieved by the judgment and the decree dated 30th August, 2007 and 11.9.2007 respectively passed by the Additional District Judge, F.T.C. I, Madhubani in Title Appeal No. 21 of 1988 / 24 of 2003 affirming the judgment dated 12.2.1988 and the decree dated 2 19.2.1988 passed by Sub Judge, III, Madhubani in Partition Suit No. 94 of 1980. The plaintiffs – respondents 1st Party filed Partition Suit No. 94 of 1980 for partition of their 3/10th share in the suit property described in Schedules 1, 2 and 3. In Schedule 1, the immovable property of the joint family stands described, whereas in Schedule 2, those which were movable properties have been described whereas in Schedule 3, ornaments and fixed deposits as well as the deposits in the bank accounts etc., which were claimed to belong to the joint family, have been mentioned. The plaintiffs claimed that one Bisey Mahtha was the common ancestor of the plaintiffs- defendants. Some of the properties of the Schedule 1 stood recorded in his name in the survey khatian, whereas some were acquired by way of purchase and settlement in the life time of aforesaid Bisey Mahtha. Entire property continued in possession of the joint family of the aforesaid Bisey Mahtha and his only son Saryug Pd. Mahtha. Bisey Mahtha 3 died about 30 years ago in the state of jointness with the aforesaid son and, therefore, his son became the Manager and Karta of the joint family. Subsequently, some properties were further acquired from the income of the joint family fund either in his name or in the names of other family members. Further, about 5 years prior to death of aforesaid Saryug Pd. Mahtha, on account of his ill health, his eldest son Batohi Pd. Mahtha (defendant no. 1) became the Manager and Karta of the joint family. The aforesaid Saryug Pd. Mahtha died leaving behind his widow, two sons and two daughters. It is the case of the plaintiffs that some dispute and differences arose between the family members with regard to use and enjoyment of the family property leading to the demand of partition and on refusal the partition suit has been filed. The defendant no. 1 (Batohi Pd. Mahtha) appeared and filed written statement refuting the allegations made by the plaintiffs and claimed that actually the partition has taken place in the family 4 in the year 1965 itself. However, since even thereafter certain dispute arose, a memorandum of partition was prepared on 23.5.1967 ( which has been brought on record as Ext. A). Thus, it is the case of the defendant that the partition having taken place in 1965 itself, which is reflected from the memorandum of partition, the demand of partition again has been made for the obvious purpose and was not tenable at all. The movables and the bank accounts etc. are of the period after the aforesaid partition and, thus, cannot be presumed to be joint family property. Defendant no. 2, the mother of the defendant no. 1, as well plaintiff no. 1, has also filed written statement admitting the allegation of the plaintiffs. However, formal prayer has been made to dismiss the suit. The trial court after considering the materials on record including the evidence led on behalf of the parties has partly decreed the suit of the plaintiff after holding that the suit properties detailed in Schedule 1 and some movable properties 5 described in Schedule 2 are liable to be partitioned and in same the plaintiffs have got 3/10th share. The trial court has disbelieved the story of earlier partition as put forward by defendant no. 1. The defendant no. 1, then, preferred Title Appeal No. 21 of 1988 / 24 of 2003 against the aforesaid part of judgment and decree passed by the trial court. The minor plaintiff nos. 2 and 3 also preferred cross appeal after attaining majority against that part of decree, whereby the claim of the plaintiff regarding some of the movable properties and the properties described in Schedule 3 have not been found tenable by the trial court. The appellate court also, after independent appraisal of the entire materials on record including evidence led on behalf of the parties, has affirmed the judgment and decree of the trial court and has dismissed the appeal as well as the cross appeal. I have heard learned counsel for the appellants as well as for the respondent no. 1. Learned counsel for the appellants submitted that he confines the second appeal only 6 that part of the decree whereby the suit has been decreed in part and affirmed in appeal in favour of the plaintiffs. Learned counsel submitted that serious error has been committed by the trial court as well as appellate court in disbelieving the theory of previous partition as set out by the defendant no. 1. It is contended that the partition had taken place in the year 1965 itself. However, since certain dispute still remained, it was reduced in writing as a memorandum of partition in the year 1967. It has been stated that the signature of the plaintiff upon the memorandum of partition, i.e. Ext. A, was sent for examination by two handwriting experts suggested by the respective parties. One of them found that the signature on Ext. A matches with the plaintiff no. 1, whereas the second one has given its opinion that the same does not match. Learned counsel submitted that in above view of the matter the same should have been sent for examination by a third expert. In above view of the matter, learned counsel submitted that the error has been committed by the concerned court. It had 7 further been urged that oral evidence could not be dealt with by both courts below in its proper perspective. Further, it is stated that the properties standing in the name of wife of the plaintiff no. 1 which was purchased in the year 1967 and 1969 have not been included for partition by the plaintiff. Learned counsel appearing on behalf of the respondent no. 1, on the other hand, submitted that both the courts upon close scrutiny of the materials on record have come to the conclusion that the story of partition as propounded by the defendant no. 1 had no legs to stand and had decreed the suit in part in favour of the plaintiffs. I have heard the parties and perused the records of this case. Both the courts below had disbelieved the story of partition put forward by the defendant no. 1 of the year 1965 and the memorandum of partition dated 23.5.1967. The land of plot no. 6673 (old khesra) was purchased in 1971, whereas, surprisingly, the same stands described in the memorandum of partition dated 23.5.1967 (Ext. A). 8 The defendant had tried to explain the same by stating that actually the aforesaid plot was purchased earlier, however, the sale deed was executed after some year. The appellate court, while dealing with this issue, has opined that supposing the same may be possible but there should be specific pleading in written statement and there must be some evidence also led in that regard to the fact that actually plot no. 6673 had come in the family of plaintiff and defendant much earlier but sale deed could got executed subsequently in the year 1971. That apart, it has also been noted that revisional survey plot no. (new plot No.) 6278 with reference to the aforesaid plot no. 6673 also stands described in the Ext. A, i.e., the memorandum of partition of the year 1967, whereas D.W. 5 has himself deposed in paragraph 3 of the deposition that revisional survey has started in the year 1969. Apart from the above trial court has also found that the hand writing of the plaintiff on the Ext. A does not match the signature of the plaintiff no. 1. In above view of the matter the issue 9 stands decided by the concurrent finding of both the courts . Coming to the next issue that few plots which stood in the name of the wife of the plaintiff have not been included, as stated by the defendant no. 1, this court finds that even before this court the defendant could not point out any material in support of the fact that the property standing in the name of female members belonged to the joint family. Apart from the above, it has been stated before this Court that the aforesaid properties were acquired by the sale deeds executed in the years 1967 and 1969, whereas the case of defendant no. 1 himself is that earlier partition had taken place in the year 1965 itself. Thus, upon this issue also the defendant no. 1 could not make out a case because according to his case itself the concerned transfers are subsequent to the claimed partition in the year 1965. In above view of the matter, this court does not find any substantial error committed by the courts below leading to any substantial 10 questions of law. This appeal, having been devoid of merit, is, thus, dismissed. Spd/- (Dr. Ravi Ranjan, J.)