Mungeshwar Sahoo, J. . FIRST APPEAL No.562 OF 1977 Against the judgment and decree dated 16.05.1977 passed by Sri Dinesh Narain Dwibedi IVth Additional Sub Judge- Chapra in Partition Suit No. 166 of 1968. Sita Devi & Ors. ……………Defendants/appellants. -Versus- Prabhunath Singh & Ors. ……… (Plaintiffs/respondents) For the appellants : M/s Ram Suresh Rai, Sr. Advocate Mr. Kamala Prasad Rai, Advocate For the respondents: Mr. P.K. Shahi, Sr. Advocate Mr. Purnendu Singh Mr. Pronoti Singh, Advocate P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T This First Appeal has been filed by the defendants/appellants against the judgment and decree dated 16.05.1977 passed by Sri Dinesh Narain Dwibedi, the learned IVth Additional Sub Judge-Chapra in Partition Suit No. 166 of 1968 decreeing the plaintiffs/respondents suit for partition to the extent of their half share in the property mentioned in detail in schedule-I and II to the plaint. 2. The plaintiffs/respondents filed the aforesaid suit for partition on the facts which may be stated in brief that Harnam Rai, the common ancestor had two sons; Kashi Rai & Krishna Rai. Kashi Rai had two sons; Ramavtar Rai & Parichhan Rai. Parichhan died issueless, as such, his line 2 extinct. Ramavtar had two sons; Sanga Rai & Gati Rai. Sanga Rai had three sons, namely, Hargovind Rai, Ramshubhag Rai & Mahadeo Rai. The second son of Ramavtar Rai, namely, Gati Rao had only one son, RamKrit Rai whose son is defendant No. 1, Ganesh Rai. The defendant No. 2, 3 & 4 are the sons of Ganesh Rai, the defendant No. 1. 3. The first son of Sanga Rai, namely, Hargovind had one son, Ram Nagina Rai whose two sons are the plaintiffs/respondents. Ramshubhag Rai, the second son of Sanga died issueless leaving behind his widow, Gulabo who also died subsequently. The third son of Sanga Rai, namely, Mahadeo died prior to 1935 leaving behind a son, Ramjatan Rai who is defendant No. 5. The defendants No. 6, 7, 8 & 9 are the sons of defendant No. 5. It may be mentioned here that the property described in schedule I to the plaint is the property of Ramshubhag Rai, the second son of Sanga. The property described in schedule-II to the plaint belonged to the branch of Krishna Rai, the second son of Harnam Rai. The said Krishna Rai had one son, namely, Bhishma Rai who had two sons; Saudagar Rai & Jhanak Rai. Saudagar Rai had only one son, Jaigovind, who died issueless, as such, his line extinct. Jhanak Rai died leaving behind two sons; Rajgovind Rai and Singer Rai. Rajgoving Rai had only one son, Rampukar Rai who died issueless in 1933 leaving behind his widow, Nanhaka @ Deosundara who is defendant No. 10. It is the case of the plaintiffs that this Nanhaka Kunwar @ Deosundara re-married in 1935 with Chhedi Singh and from Chhedi Singh she had one son, aged about 28 years and one daughter, aged about 22 years on the date of filing of the Partition Suit. The second son of Jhanak Rai, namely, Singer Rai died issueless leaving behind Most. Bahura Kunwar, his widow who also died in the year, 1968 prior to institution of the suit for 3 partition. Accordingly, Rampukar Rai was the last male holder of the land of the family of Krishna Rai. For better appreciation of the genealogy table, the same is reproduced hereinbelow. 4. The further case of the plaintiffs is that Rampukar died issueless in 1933 leaving behind no issue. His widow , the defendant No. 10 was young, so she married in 1935 with Chhedi as a result of which she met with her civil death regarding the family of Rampukar and the property of Rampukar were jointly inherited equally by Ramkrit , Ramshubhag & Hargovind Singh who were agnates of equal degrees because Mahadeo had already died prior to 1935 & was not alive in 1935 when the succession to property of Rampukar opened. The property of Rampukar has been described in schedule-II of the plaint. The further case of the plaintiffs is that on the death of Hargovind, his son, Ram Nagina and on his death, the plaintiffs 4 succeeded to the properties of their grandfather, Hargovind. Ramshubhag Rai, the second son of Sanga died issueless leaving behind widow, Gulabo who also died subsequently. Therefore, the properties of Ramshubhag were divided half and half between Ram Nagina, the father of plaintiffs and Ramjatan, the defendant No. 5. In view of these facts, the plaintiffs claim that in the properties of Rampukar as described in detail in the schedule-II of the plaint, they have got half share. The defendants No. 1 to 4 have got 1/3rd share and the defendants No. 5 to 9 have got 1/6th share. Likewise, so far property of Ramshubhag described in detail in schedule-I of the plaint was claimed to be inherited by Nagina, father of plaintiffs and defendant No. 5 after death of Gulabo to the extent of half and half. Therefore, the plaintiffs claimed half share in schedule-I also. 5. The plaintiffs further case is that the defendants No. 1 & 5 obtained some illegal sale deeds said to have been executed by defendant No. 10 in the name of their relation, namely, Ramjanam & Ramjatan Rai of Fateh Rai Ke Tola. The said two persons never came in possession of schedule-II lands. Transaction was sham transaction. Subsequently, the defendants No. 1 & 5 obtained sale deeds in their names from the aforesaid two persons of Fateh Rai Ke Tola. The further case is that the said defendant No. 1 & 5 obtained collusive sale deeds in the name of Ram Nagina Singh, the father of the plaintiffs without the knowledge of Ram Nagina for the purpose of creating evidence. The said sale deed was never acted upon and therefore, neither the father of plaintiffs nor the plantiffs further claim any possession of schedule-II lands as purchaser. According to the plaintiffs, they claim in joint possession of schedule-II lands by inheritance after remarriage of defendant No. 10 who has been living in Deoriya with her husband, Chhedi Singh since 5 after her marriage in 1935. On these grounds, the plaintiffs prayed for the reliefs of partition as aforesaid. 6. The defendant No. 10 filed written statement supporting the plaintiffs case. The defendant Nos. 1, 2 and 5 to 7 flied a joint contesting written statement. From perusal of the written statement, it appears that the main defence is that after death of Ram Pukar, his widow Nanhka came in possession of his properties till 1942. In 1942, she sold the entire properties to RamJatan & Ramjanam of Feteh Rai Ke Tola, for Rs 2,000/- and put them in possession. After selling the property as aforesaid, she went to her Naihar, Sobat and since then she is living there. The vendees of Fateh Rai Ka Tols sold nine bighas of land to defendant No. 1 in August, 1944, five bighas land to defendant No. 5 in 1944 and three bighas land to Ram Nagina , father of the plaintiff in March, 1945 and the vendees accordingly, came in possession of their purchased lands. They were mutated and were and are paying rent after mutation. The case of joint inheritance as pleaded by the plaintiffs regarding the land of Rampukar was denied. Subsequently, they divided the lands of Rampukar according to their purchase and came in separate possession for more than 12 years openly and adversely as such, they have prescribed title by adverse possession. 7. So far the lands of Ramshubhag Singh as described in detail in schedule-I to the plaint, the case of the defendants is that Ramshubhag Singh executed a will in September, 1941 in respect of his entire properties in favour of defendant No. 6, Sukhdeo stipulating therein that till the lifetime of Gulabo Kunwar, she will remain in possession and after her death the defendant No. 6, Sukhdeo Rai will inherit the property and accordingly, on the death of Gulabo, defendant No. 6 became absolute owner of property of 6 Ramshubhag and is in possession. The plaintiffs have no share so far schedule-I land is concerned. 8. The further case is that the two persons of Fateh Rai Ke Tola had no relation with these defendants and that on partition, the lands mentioned in schedule-I to W.S. was allotted in favour of the father of plaintiff. The lands described in schedule-II of the W.S. was allotted to defendant No. 1 and the lands of schedule-III of W.S. were allotted to defendant No. 5 and accordingly, they are coming in separate possession. The father of plaintiff, namely, Ram Nagina himself purchased the lands from the two persons of Fateh Rai Ke Tola after payment of consideration. After the death of Ram Nagina, the plaintiffs are coming in possession on the purchased land. 9. The further case of the defendant is that, Nanhka Kunwar, the widow of Rampukar never remarried and she never lived unchaste life. Besides these main pleadings, the defendants have also raised various legal pleas and on these grounds, the defendants/appellants prayed for dismissal of the suit. 10. On the basis of the pleadings of the parties, the learned court below framed as many as nine issues. After trial, by the impugned judgment and decree, the learned court below came to conclusion that Nanhka Kunwar remarried Chhedi of village, Deoriya in 1935 as a result of which she met with her civil death and the entire properties of her husband , Rampukar were inherited by Ramkrit Singh, Ramshubhag Rai and Hargovind Singh as nearest agnates of equal degrees. The learned court below so far schedule-I property is concerned, found that the plaintiffs are entitled to 1/4th share in Plot No. 595 of Khata No. 343. In rest property, detailed in schedule-I, the plaintiffs are entitled to half share. While deciding the share of plaintiffs 7 regarding schedule-I property belonging to Ramshubhag Rai, the learned court below did not rely upon the will on the ground that it was not probated. 11. It may be mentioned here that at the time of hearing of this First Appeal, it was pointed out that an application under Order 41 rule 27 has been filed on behalf of the appellants for adducing additional evidence to bring on record the judgment and decree passed in the Probate case filed by the defendant, Sukhdeo Rai. The respondents submitted that against the said judgment and decree granting probate, the defendants have filed First Appeal No. 102 of 1980. On the joint prayer of the parties, therefore, the said First Appeal No. 102 of 1980 was also heard alongwith this First Appeal. The Claim of the plaintiff in the Partition Suit regarding schedule-I property is contested by the defendants on the basis of this will and therefore, the decision on the question i.e. the decision in the first appeal 102 of 1980 will decide the controversy between the parties regarding the properties of Ramshubhag Rai as described in schedule-I to the plaint. In view of the fact that the appeal arising out of the judgment and decree sought to be brought on record as additional evidence is being heard alongwith this appeal, the defendants/appellants did not press the application for additional evidence. 12. The learned senior counsel, Mr. Rai appearing on behalf of the appellants submitted that the learned court below has misread the pleadings of the parties. According to him, although there was denial in the written statement, that Nanhka Kunwar has got no alias name as Deosundara Devi, but the learned court below committed an error of record by saying that the defendants have admitted the alias name of Nanhka. Mr. Rai further submitted that Nanhka Kunwar & wife of Chhedi namely, Deosundara Devi are different persons but the learned court below proceeded to decide the 8 case as if they are same person and has wrongly given much emphasis on Ext-6, the so-called Pariwarik Pustika. According to him, this Ext-6 is not admissible in evidence. The learned senior counsel further submitted that while discussing the issues regarding re-marriage of Nanhka in 1935, the learned court below has discussed only the oral evidences and ignored the documentary evidences. According to the learned counsel, the three Jarpeshagi deeds dated 13.11.1937 (Ext-L/5), dated 13.7.1939 (Ext-L/2) and dated 8.3.1941 (Ext-L/4) which are registered documents falsify the story of re-marriage of Nanhka in 1935. The learned counsel further submitted that as widow of Rampukar, Nanhka Kunwar executed the said Jarpeshagi deeds in favour of strangers to the family but the learned court below ignored the effect of those documents. The learned counsel further submitted that said Nanhka Kunwar executed sale deeds in favour of Ramjanam & Ramjatan of Fateh Rai Ka Tola in 1942 as widow of Rampukar and unless the said sale deeds are avoided within the prescribed period, the plaintiffs cannot get any relief because according to the learned counsel the sale deeds are not void ab initio. The learned counsel further submitted that the defendants/appellants have made specific case that widow of Rampukar never re-married and she after selling the property went to her Naihar and since then, she is living there but the learned court below wrongly found to the contrary to the effect that she married in 1935 with Chhedi. 13. The learned senior counsel further submitted that the simple suit for partition was not maintainable and the suit was time barred but the learned court below held wrongly that question of limitation was not pressed. According to the learned counsel, even if the question of limitation was not raised, then also according to section 3 of the Limitation Act, it was the duty 9 of the court to have dismissed the suit as it was time barred because the sale deeds sought to be avoided are of the year 1942, 1944 & 1945. A detail written argument has been filed on behalf of the appellants elaborating the submissions of the learned counsel. 14. On the other hand, the learned senior counsel Mr. Shahi appearing for the plaintiffs/respondents submitted that the learned court below has meticulously examined the oral as well as documentary evidences and has rightly found that widow of Rampukar Nanhka Kunwar ra-married in 1935. Mr. Shahi further submitted that Nanhka Kunwar , the widow of Rampukar who is defendant No. 10 in the suit herself, has admitted the case of the plaintiffs. According to Mr. Shahi, she admitted her remarriage with Chhedi Singh in her pleading as well as in evidence and in Ext-5, she admitted her alias name as Deosundara Kunwar. Mr. Shahi further submitted that Ext-6 is a public document which was marked as exhibit without objection and therefore, before this appellate court, the appellant cannot object the admissibility of the documents. Mr. Shahi further submitted that there are overwhelming evidences on record in support of the re-marriage of Nanhka Kunwar with Chhedi Singh in 1935 and relying on those evidences, the learned court below has rightly found that she re-married in 1935 with Chhedi Singh. On the basis of this, the learned senior counsel, Mr. Shahi submitted that once it is held that Nanhka @ Deosundara remarried in 1935, then after 1935, she had no right to execute either Jarpeshagi deeds or the sale deeds in favour of anyone. Since she had no right, she could not convey any title to anybody and therefore, the documents are void documents. According to Mr. Shahi, the void documents are not required to be set aside by instituting a separate suit. On these grounds, the 10 respondents submitted that the appeal is liable to be dismissed. 15. In view of the above contentions of the parties, the following points arise for consideration in this appeal:- ( i ) Whether the plaintiffs/respondents are entitled to a share as claimed by them with respect to schedule-I property and whether the learned court below has rightly found so? ( ii ) Whether the plaintiffs/respondents are entitled to a share as claimed by them in respect to schedule-II property and the finding of the learned court below on this point is correct? F I N D I N G S 16. Point No.I: So far the property mentioned in schedule-I to the plaint is concerned, according to the plaintiffs, the schedule-I property belonged to Ramshubhag Rai who died issueless leaving behind his widow Gulabo. On the death of Gulabo, the property was partitioned half and half between the plaintiff’s father and defendant No. 5. On the contrary, according to the defefndants, during his lifetime, Ramshubhag Rai had exdecuted a will in favour of his widow and Sukhdeo Rai, the first son of defendant No. 5. In the will, it was mentioned that after his death, the widow will remain in possession of the property and on her death, the property will devolve on Sukhdeo Rai. A Probate Case was filed by Sukhdeo Rai. The Probate Case was pending when the Partition Suit was decided. Therefore, the learned court below did not look to the will in view of provision as contained in section 213 of the Indian Succession Act. During the pendency of this first appeal, the Probate Case was allowed and the will was probated in favour of Sukhdeo Rai, the 11 defendant No. 6. Agaist the said judgment and order, the plaintiffs/respondents herein filed first appeal No. 102/1980 before this court. As stated above, while hearing this first appeal, on the prayer of both the parties, said first appeal No. 102/1980 was also heard with this first appeal because the defence of the defendants/appellants of this first appeal regarding schedule-I property is the same as made out in the Probate Case by defendant No. 6. In other words, so far schedule-I property is concerned, the written statement of this Partition Suit is same as that of Probate Application in the Probate Case. I heard both the first appeals together and judgment is being delivered one after the other. After hearing the parties, I have already dismissed the first appeal No. 102/1980 and therefore, now the fact remains that so far property of Ramshubhag Rai is concerned as mentioned in detail in schedule-I , the will has been probated in favour of Sukhdeo Rai, Therefore, I find that so far the property of Ramshubhag Rai is concerned, the defendant No. 6 is the absolute owner according to will and the plaintiffs have got no share in the property of Ramshubhag Rai and they cannot claim partition. The findings of the learned court below on this point are, therefore, reversed and the judgment and decree so far it relates to the property of Ramshubhag Rai is concerned, are set aside. 17. Point No.II: According to the plaintiffs case, the widow of Rampukar remarried in 1935 with Chhedi Singh and she is living with him at Deoriya. She has one son, Chandrama aged about 28 years and one daughter, aged about 22 years from Chhedi Singh. Further since she remarried in 1935, she met civil death so far Rajkumar’s family is concerned and after her remarriage, the property of Rampukar was inherited by Ramkrit Rai, Ramshubhag Rai and Hargoving Singh jointly being the nearest agnates of 12 equal degree. On the contrary, according to the defendants, Nanhka Kunwar , the widoe of Rampukar never remarried with Chhedi Singh. According to them, she sold the entire lands of Rampukar to Ramjanam & Ramjatan of Fatehpur Ke Tola in 1942 and she went to her Naihar and is living there. Subsequently, the said Ramjanam and Ramjatan of Fatehpur Ke Tola sold the properties by three registered sale deeds in favour of RamNagina, the father of plaintiffs, Ramjatan, the defendant No. 5 and Ganesh the defendant No. 1 in 1945 and 1944 respectively. Now therefore the question arises is as to whether Nanhka Kunwar, the widow of Rampukar remarried in 1935 or not? If it is found that she remarried with Chhedi Singh in 1935, then she had no right, title, interest or possession over the properties of Rampukar as she met her civil death and therefore, she could not transfer any right, or title to the transferee in 1942. If it is found that she had not remarried, she lived in her Naihar as pleaded by defendants, then the case of the defendants is bound to be accepted because before the court there is only two versions, one pleaded by the plaintiff i.e. she married in 1935 & the other pleaded by the defendants i.e. she never remarried with Chhedi Singh. In view of the above facts, the court has to find out as to which version is correct and the court cannot make a third case. To prove their respective case, the parties have adduced oral as well as documentary evidences. 18. Before entering into the evidences, it may be mentioned here that in Paeragraph-4 of the plaint, it is specifically pleaded that the widow of Rampukar , i.e. Nanhka Kunwar has alias name as Deosundara. In the genealogy table given in detail in the plaint also, her name has been described as Nanhka Kunwar @ Deosundara Kunwar. In Paragraph-10 of the W.S. the defendants/appellants have not at all denied this pleading 13 regarding the alias name. 19. The learned counsel for the appellants submitted that in Paragraph-8 of the W.S. it is specifically pleaded that the description and address of defendant No. 10 has been wrongly mentioned which means that the case of the plaintiff has been denied. In my opinion, this pleading in the W.S. of the contesting defendants is neither here nor there. On the basis of this pleading, it cannot be said that the defendants have denied that Nanhka Kunwar has no alias name. Except this, there is no other statement in the pleading of the contesting defendants. From perusal of the evidences, it appears that P.W. 1 Arjun Singh who is one of the plaintiffs, at Paragraph-10 has clearly stated that Nanhka Kunwar was known as Deosundara Kunwar also. There is no denial on the part of the defendants to this evidence. The defendants have not at all adduced any evidence denying the alias name of Nanhka Kunwar as Deosundara Kunwar. In the plaint, she has been described as wife of Chhedi Singh and is made defendant No. 10. In the genealogical table also, same description has been given. So far pleading in Paragraph-8 of W.S. is concerned; there is denial to the effect that the description is wrong. Likewise, the address of defendant No. 10 has been given which has been denied in Paragraph-8 of the W.S. to the effect that the address is wrong. Therefore, so far alias name of Nanhka Kunwar as Deosundara Kunwar is neither denied in the written statement nor in the evidence of the defendants. In my opinion, therefore, the said facts stand admitted. I, therefore, find no force on the submission of the learned counsel appearing for the appellant that Deosundara Kunwar and Nanhka Kunwar are different persons. 20. The next question is as to whether Nanhka Kunwar remarried in 1935 with Chhedi Singh or not? 14 21. P.W. 1 Arjun Singh is one of the plaintiffs. At Paragraph-9 of his evidence, he has clearly stated that Rampukar died in the year, 1340 Fasli and in 1342 Fasli, Nanhka Kunwar re-married with Chhedi Singh of Deoriya. She has a son and a daughter. The learned counsel for the appellant submitted that this witness is incompetent to say about the marriage of Nanhka Kunwar with Chhedi Singh in 1935 because he was aged about 36 years on the date of deposition. So far this submission is concerned, also I find no force because at Paragraph-24, he has stated that he had learnt this fact from his father Ram Nagina and (defendant No. 5), Ram Jatan Singh. Moreover, the defendant No. 10 Nanhka Kunwar herself has been examined as P.W.3 in