LETTERS PATENT APPEAL No.20 OF 1994 ------------- Against the judgment and order dated 22nd January 1994 passed by the learned single Judge in Appeal from Original Order No. 272 of 1974. - - - - - - - - 1(a) Indu Devi wife of Late Ram Bilas Singh. 1(b) Abhay Shankar son of Late Ram Bilas Singh 1(c) Roshan Kumar son of Late Ram Bilas Singh. 1(d) Rubi Kumari daughter of Late Ram Bilas Singh 1(e).Rina Kumari daughter of Late Ram Bilas Singh All residents of village Bhairwar P.S. & Dist. Begusarai. 2. Draupadi Devi daughter of late Kailash Singh. 3. Mostt. Kulmarh Devi @ Bhago Devi widow of Kailash Singh 4. Kishuni Singh son of Baikunth Singh. 5 (a) Most. Sumitra Devi wife of Late Janardan Singh. 5 b)Shashi Bhushan Singh son of Late Janardan Singh. 5(c)Niraj Singh @ Niraj Kumar Singh son of Late Janardan Singh. All residents of village Bhairwar P.S. & Dist. Begusarai. 6. Ram Dulari Devi wife of Late Sheo Balak Singh. 6 (a) Ram Badan Singh son of Late Sheo Balak Singh 6 (b) Arbind Singh. 6 (c ) Navin Singh sons of Late Sheo Balak Singh 6 (d) Mira Devi wife of Umesh Singh 6 (e) Usha Devi wife of Bishundeo Singh. 6 (f) Viva Kumari (minor) under the guardianship of her mother Ram Dulari Devi . All residents of village Bhairwar P.S. & Dist. Begusarai. 7. Ram Balak Singh. 8. Most. Sundari Devi widow of Late Siya Ram Singh. 9. Madan Mohan Singh son of Late Siya Ram Singh. 10. Smt.Gayatri Devi wife of Krishna Nandan Singh. 11. Smt. Jabitri Devi. 12. Smt. Nand Kumari Devi. 13. Smt. Asha Devi daughters of Late Siya Ram Singh. All residents of village Bhairwar Pragana Ballis Thana Begusarai Dist. Begusarai. (Plaintiff-respondents) ….. Appellants. Versus 1.Nathuni Bhagat son of late Biranchi Bhagat. 2.Mahendra Bhagat son of Late Jitan Bhagat. 3.Ram Ashish Bhagat son of Jitan Bhagat. 4. Ram Pravesh Bhagat son of Jitan Bhagat. All resident s of village Dhabauli,Pragana Ballia P.O. Dhabauli District Begusarai. 5.Chando Bhagat . 2 6.Chandeshwar Bhagat. Both sons of Sonia Devi widow of Khakhar Barai and daughter of Khakhari Devi(dead). Resident of village Maniappa, Pragana Bellia, P.S. and district Begusarai. (Defendant-appellant) .. Respondents 1st Party. 7. Shankar Barai son of Mishri Barai (dead) 8. Vakil Bhagat son of Shankar Barai. 9. Smt. Dhudhia Devi daughter of Mishri Barai All residents of village Ratanpur P.S.Surajgarha, At present Dhabauli P.S. & Dist. Begusarai. 10.Chandrakala Devi wife of Suresh Manchand. Resident of village Surajgarha Dist. Munger. 11.Tetari Devi wife of Basudeo Bhagat. Resident of village & P.S.Mokamah District Patna. ……… (Defendants-respondents) Respondent 2nd Party ----------- For the Appellant : M/s Pushkar Narain Shahi, Ritesh Kumar, Ravi Kumar & Sanjeet Kumar Singh, Advs. For the Respondents : None. P R E S E N T THE HON’BLE MR.JUSTICE SHIVA KIRTI SINGH. THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. C.M. Prasad,J The facts which were admitted in appeal before the single judge by the contesting parties were that one Jawahar had two sons, namely, Hiro and Mochan. Hiro died leaving behind him two sons, namely, Biranchi and Jitan, who were the contesting defendants before the trial court and who are the respondents here. Mochan died leaving behind him one married daughter, namely, Khakhari who was impleaded as defendant No.7 in the suit. Subsequently, on her death during the pendency of the suit, her heirs were brought on the record. The Hindu un-divided family of Hiro and Mochan owned and possessed immolvable property. The plaintiff (appellant herein) under registered sale-deed dated 3 21stAoril 1968 (Ext-1), purchased land measuring 8 bighas, 6 kathas and 4dhurs in 27 different plots lying under different Khatas and Tauzi from Khakhari out of her alleged 50 per cent share of the aforesaid Hindu un-divided family. It was on the basis of the sale-deed that the suit for partition had been filed by the plaintiff-appellant for carving out her share by metes and bonds to the above extent. 2. The learned counsel for the parties on the basis of facts, also admitted in appeal before the Hon’ble single judge that out of the two brothers, Hiro had died prior to 1954 and Mochan died some times in 1954. 3. Mochan had executed a gift-deed dated 27th August 1937 (Ext-2) in favour of his daughter Khakhari. The plaintiff-appellant’s case was that there was severance of joint status between Hiro and Mochan on the date of execution of the gift deed dated 27th August 1937 (Ext-2) and, therefore, Khakhari, the vendor of the plaintiff, as owner of the land under the gift-deed had valid title and interest making her competent to effect the sale-deed in the plaintiff. 4. The plaintiff-appellant contended that the gift- deed (Ext-2) expresses an intention of severance between the two brothers and that on executing the gift deed, Mochan had separated from his brother Hiro on 27th August 1937 i.e. the date of execution of the gift-deed, whereas on the other hand, the respondents contended that the gift-deed cannot be accepted as a 4 declaration of intention of severance of status of jointness between the two brothers. 5. In order to decide this controversy, as also done by the appellate court, it is relevant to quote the details of the property as described in the said gift-deed: “Details of property – 4 Kathas of Kayami-Jot land, out of 8 Katha after deducting half share of Hiro Barai, own brother of the executant situate at Mauza Raghnandanpur Dhabauli, Pargana Aliya, Thana, Sub-division and Sub-Registry, Begusarai, District Munger, bearing Tauzi No. 730, Thana No. 336 in the Zamindari of Babu Khublal Singh at an annual Jama of Rs.1, 4 Annas and 6 Pais, including cess to the extent of half share in the gifted property.” 6. On consideration of the details of the property in the gift-deed, as above, it appears that the donor had intended to gift 4 Kathas of land by carving out 50 per cent share in one of the plots measuring 8 Kathas of the joint family. The gift-deed does not mention of any other property of the joint family. On the basis of the above, it can simply be understood that the donor Mochn Barai as Karta of the family had intended to donate 4 Kathas of land to his daughter for the purpose of residence. In view of the purpose, it cannot be accepted as a declaration of unequivocal intention of Mochan Barai of separation from Joint Hindu Family, by untying the jointness. In such view of the matters, it was rightly held that the gift-deed in isolation cannot be accepted as 5 conclusive evidence of the fact of separation in the family. 7. Learned counsel for the plaintiff-appellant cited the case of Ram Bahadur Nath Tiwary Vs. Kedar Nath Tiwary and others (AIR 1977 Pat.59) wherein it has been held that mutual transaction between the two members is strong evidence of partition indicating proof of previous partition. No doubt, mutual transaction between the parties may indicate and it can be the strong evidence of partition, but in the instant case the gift-deed (Ext-2) is not an act of mutual transaction between the parties, but it is an unilateral document executed by Mochan Barai in favour of his daughter with respect to a portion of the land of Joint Hindu Family. 8. In order to dispel the plaintiff-appellant’s claim of severance of the joint family on the date of execution of the gift-deed (Ext-2), the defendants produced the sale-deeds dated 3rd August 1939 (Ext-D), dated 14th August 1939 (Ext-D/1), dated 12th May 1936 (Ext-D/2) and 2nd May 1935 (Ext-D/3). All these sale-deeds were executed jointly by the two brothers i.e. Mochan and Hiro whereby they sold certain lands of the family. The sale- deeds were executed jointly by the two brothers, i.e. Hiro and Mochan, who had sold the lands of the family showing that the sale-deeds were effected to meet the family needs. In the sale- deed dated 3rdAugust 1939 it was mentioned that the lands were sold for redeeming the lands of the Sud-Bharna bond dated 12th April 1923 under which the family had taken loan of Rs.1,000/-. 6 It was also stated that by the sale, the entire family of the two brothers along with minors will be benefited. In view of the execution of the sale-deeds by the two brothers with respect to the joint family lands, there cannot be any other conclusion than one that the two brothers were joint and they were jointly dealing with the property of the Mitakshara Joint Family till 1939. In view of the sale-deeds as executed by the two brothers till 1939, the plaintiff-appellant’s story of severance of the family of the on the date of execution of gift, i.e. 27th August 1937 fails. 9. Learned counsel for the plaintiff-appellant contended that the family had already separated after execution of the gift-deed and that thereafter the parties were cultivating the lands jointly but not as members of joint family, but as tenants in common. But this submission of the learned counsel is not acceptable, in view of the sale-deeds (Ext-D Series) as executed by the two brothers Mochan and Hiro jointly dealing in the joint family property for the benefits of the joint family, including minors. 10. Learned counsel for the plaintiff-appellant submits that after execution of the gift-deed, joint family had separated and Khakhari had become the absolute owner of the property of her father Mochan Barai, but in support of the claim, the plaintiff-appellant has not been able to show that in view of the lands under the gift, any mutation of any land in the name of Khakhari was ever done or she ever paid any rent for the land. 7 Rather the rent receipts (Ext-E Series) in respect of the joint family were in the name of Jitan and Biranchi, the sons of Hiro and Mochan. 11. Thus, in view of above, there is no ground to believe that the execution of the gift-deed amounted and operated as severance of the joint family and that thereby Khakhari became absolute owner of the joint family property with respect to 50 per cent share of her father Mochan Barai. Therefore, the plaintiff has no right to claim a partition with respect to joint family property on the basis of the sale-deeds obtained by him from Khakhari. 12. In such view of the matters, the suit was fit to be dismissed and it was rightly dismissed by the Hon’ble single judge. 13 Thus, finding no merit in this appeal, it is dismissed. Parties will bear their own costs in this appeal. (C. M. Prasad, J.) Shiva Kirti Singh,J High Court, Patna. Dated 11th Aug.2010 N.A.F.R. Jay/ I agree. (Shiva Kirti Singh,J)