s.. ^? ^:et/^ IN .TtS Hai'BLE HIGH ME. AT BILASMK SEGCMD'APPEAL'NQ<."-5-t- OF '200^ t:wwfSHiSSwwiifu»u»M»y»»wf» —^w »•»»— ^»—•—Natd"*''^ QOfeSfi!,&,,affiaec] ^.1 yaleied BsES. ^ ApreyACTS .^ ^' ^^•' (^~^?L.-'" ^y ^y «" .^'-^ «^>\/' <<s'.»^' >" Btidelhesbwaz Slngh, aged 76 yeazs'y SOR of Shxj. Sfayan Sander Siiigh;» \ ^ Shasfat Bhushan Slngh^ aged52 yearsf sen of Shrt Shyaa Sander SiBgtr, j Boffa residents e£ viilage - P®ebisliaiaker»TehsM - t&anpdf Bistjsiefe-i J<»njg£i>»ChaBpa(cfehattisgaife)y ^3@ &rt@Kashalra Bai, aged 54 years', daagtater ef Shri Sfayaa Seinder iSingyy wife ef Sfarl Sajiwara Siagfc,i zesideirt ®f village- Hazdt, Tahsil-Janjgir, ..Bisirict- Janjgiii-cfeaapa(Cfahattisgarit)'| Bfeanwar SiRgfa, aged 52 years', SOQ of ShriManharan Singfe, resident |t>f vlllage Siad, TabsU-Janjgir, Distrief- J1B3§£&- Cifupa (£hha-ttisgarh)g WE R S y S , ' , . \ ,: .^.. Bl 'B.ESPGMI3ENTS -1EFENJ»NT- {^@ Thakur ^upendra SiBgh, aged i25 ycarsf s®nof Shri Niranjan Singb Clianetei^ resident e£village - Cfefaita Badariy*, ^^ Tahsll - Saktlf, Bistriet—JaBjglzi- , / (%agpa ( Gtoliattisgarh), ,/2g Stateofcteba-fctisgaifaf,-throagh1fce Gelleeter, JaBJglr - Cfeapa SE^ES APPEM. ItfEER SECTK3EI QQEE OF GXtII. w^ r 3 ©E.THE ! 13 ^ Ba' HIOHCOURT OFCHHATTISGARH AT BILASPUft SA.No. 91 of 2003 ADpellants : BuddheshwarSin^iandothers. VERSUS Respondents : ThahurBhi^>endraSingh&Anor. ^ Shri SonmathVerma teamedcounseltwtheappellants« Shri S.K.Agravwil, Advocate wlth Shri H.S.Patel, Advocate for respondent No.1. ORDER (Passed on ^) -11 -2006) Dhirendra Mishra. J The appellants/plafntiffs have prefenred this second appeal against the judgment and decree dated 16.1^003 passed by Additlonal District Judge, Janjgir district Btlaspur In Cjvil Appeals No. 21-A/2002 and 26-A/2002 arising out of original judgment and decree dated 22.3.2002 passed in Givil Suit No. 206-M996. The flrst Appellato Court however dismissed the Civil Appeal No. 26-AQ002 and allowed the Civil Appeal No. 21-A/2002 flted by respondentNo.1 herein setting aside Bie judgment and decree passed in eivil Suit No. 206-M1996. 2. The facts of the case in brief are that the plaintlffe filed a civil suit averring that they are the sons and daughters of late Shyam Sundar Singh who died in the year 1964. Or. Bhanu Pratap Singh befng the eldest son Of late Shyaro Sundar Singh was the Karta of the fiamily who succeeded to the movable and immovable propertyafter thedeafli of his father. PartltiCTi had not taken place in their family. Dr. BhanuPratap Singh gotthe land of vitlage Chhita Pandariya bearfng Khasra No. 30, divided into two parts i.e. Khasra No. 30/1 area 5.27 aores and Khasra No. W2 areaSO acres and got the same recorded in his name without the knowledge of other heirs. He also purehased land in village Sarmani and Pondi Sankar In his ^7 name through ttie sale preceeds of the joint property and he as well as the plaintlffs were in joint possession of the sam®. Dr. Bhanu Pratap Singh executed a registerad will in favour of defendant No.1 with respect to his 1/3"* share of land recorded in their names jointtyand sought a declaration that wlll dated 21.11.1989 is iltegal, void and ineffective. Afurther declaratlon was sought to the effect that Dr. Bhanu Pratap Singh was entitled only for 1/5 share in the coparcenary property and perpetual Injunction against defendant No. 1. Subsequently, by way of amendment another relief was alternatwaly prayed for with respect tothe possession oftheland bearing Khasra No.30, area 30 acres situated in vlllageChhita Pandariya. 3. _ Thecase of the defendants was that the land was partitioned by late ShyamSunder Singh during his life time and In pursuance of the partition they were in possession over thyr respective shares. In land ceillng cases the plaintiffs Budhdeswar Singh, Shashi Bhusan and lats Shyam Sundw Singh Tlled separate returns mentioning that each of them were allotted 30 acres of land in village Chhita Pandartya and since then they were in separate possession over their shares of land. However, they have deliberately suppressed thls fact in their plaint. They had also sold lands of their shares te various persons in the year 1978. 4. The triat Court partly decreed the suit holdlng that the partiUon of the joint family had taken place during the lifetime of late Shyam Sunder Singh and the property purehased by Dr. Bhanu Pratap Singh was n®tpurchased through the proceeds of joint famlly property. Howevar, wiU dated21.11.1989 was declared iltegal and void with respect to 30 aeres of land on the ground that wife of Dr. Bhanu Pratap Slngh was alive at the time of execution of will and as there was no consent of his wife, the will was illegal and void in the absence of her consent. The plaintiffs as also defendant No.1 pr^arred flrst ^ appeal against judgment and decree of the trial Gourt and the learned flrst appellate Court vide impugned judgment and decree allowed the appeal of defendant No.1 and dismissed the suit. Will in favour of defendant No.1 wasdeclared to be legal and valid. The appeal preferred by the plaintiff has b een dismissed. 5. Both the Courts below have arrived at thsconclusion that the property was partitioned during the life ttme of late Shaym Sundar Singh who died in the year 1964 and since then all ttie share hotders were in separate possession of their respective shares of land. The above finding is based on the oral as well as documentary evidence adduced by the respective parties as the witnesses examined by both the sides have supported their respective cases. 6. Courts below have also arrived at the conclusion that on the basis of revenue records where it has been established that alt the three brothers were allotted 30 acres of land each in village Chhita Pandariya and they were the recorded owners of the same in the revenue record. Ptaintiff - BucMheshwar Singh had sotd his share of land to various persons on different dates. Similarly plaintiff Shashi Bhushan Singh was also allotted 30.62 acres of land in village Chitta Pandariya and some part of it he sold to various other persons. The plaintiffs had deliberately suppressed this fact as they have not described the land allotted in their share, in schedule - A and Schedute - B to the plaint and on the basls of above oral as well as documentary evidence both the courts below have recorded a concurrent finding of fact that late Bhanu Pratap Slngh had obtained the land bearing Khasra No. 30/2 area 30 acres in his share in the partition and the partition was effected before 1954 during the life time of late Shyam Sundar Singh. ^ 7. Both the Courts below have also arrived at the conclusion that Dr. Bhanu Pratap Singh purchased the land in village Pondt Shankar and Sarmani out of his personal earning as he was doctor by profession. The Courts below have also held that Khasra No. 30/1 area5.27 aeres invitlage Chitta Pandariyawas recorded in the name of Buddheswar Stngh, Sh^W Bhushan and Dr. Bhanu Pratap Singb. Late Bhanu Pratap Singh Itad 1/3 share in the above land situated at vUtage Chhita Pandariya. 8. Learned Appellate Court allowed the appeat preferred by th® defendant No.1 and held that the witl executed by Bhanu Pratap Singh in favour of the defendant No.1 was legal as the execution of the wlll has not been chaUenged t^ the plaintiffs and his wife namely Ajab Bai and in the absence of any challenge from theside of wife the plaintiffs eannot ehallenge the will and thus on this ground. 9. Learned counsel for the appellaftts has vehemently chaflenged the findlngs of both the Courts below on the following 6 grounds: (a) It is not disputed that apart from ttiree sons tate Shyam Sundar Singh had two daughters namely Kashmira Bai and Sushilabai and plaifttiff No.4 namety Bhanwar Singh is the son of Sushila Bai. In this case, it was the onus of defendant No.1 to prove the feet that the partition took place in the life time of late Shyam Sundar Sfngh. However, since the defendant has not entered into witness box and there is no evidence on reeord to show that in the alleged partition what share was altotted to Kashmira Bai and Sushila Bai, it cannot be presumed thrt partition took place between the copareenere of the joint property. tt is further argued that the will is illegal and votd as 1/3 share has been bequeathed to the defendant No.1 from th& proparty recorded jointly. As per the Hindu Law daughters are also entitled tor partition and Dr. Bhanu Pratap Singh was entitled only for 1/5 share and not for 1/3 share. In pursuanc® of this eontention leamsd counsel for the appellants placed reliance in the judgment of theSupreme Court in the matter of Mahila Bajrangi (Dead) through LRs and ottiers Vs. Badribai W/o Jagannath and anotber reported in 2003 AIRSCW129 and in the matter of Madanlal (dead) by LRs and others Vs. Yoga Bai (Dead) by URs. Reported in AIR 2003 SC 1880. (B) Learned Gounsel for the appellants apart from other substantial questions of law has proposed the one, sueh as - whether adverse presumption should not have been drawn against the defendant No.1 for not presenttng himself as a witness during trial and whether only ®n the basis of mutation in revenue records, the partition between the partles can b& inferred as valid and whether testator Bhanu Pratap Singh v/as entitled for 1/3 share over the ancestral property and whether non allotment of any share to his sisters can make the partitlon legal as per / the provisions of Hindu Succession Act, 1956. 10. Both the Courtsof faets have based their flndings on the fact that the partition took place between the parties on the documentary evidence adduced by the respective parties. The instant suit is admittedly not the suit for partition. It is not even the case of the plaintiffs that the partition effected in the famlly was inequitable and that it was illegal and void because no share was allotted to the sisters of Dr. Bhanu Pratap Singh. By the instant suit the plaintlffs have sought declaration that the wlll executed by Dr. Bhanu Pratap Singh in favour ofdefendant No.1 is illegal and in-operative as therewasno partition in the family. Thus |n the aforesaidGircumstances thecontention of the learned counsel for the appetlants/plaintiffs that simply on the basls of revenue records or on the basis of the fact that 30 acres of land was atlotted to the share of all the three brothers each it cannot be presumed that there was partition in the family, is not tenable. The finding of both the Courts below regarding partition in the family is a concurrent finding of fact which is based on proper appreciation of oral and documentary evidenee available on record and the same cannot be interfered with in the seeond appeal. Similarly, it was the onus of the plaintiffs to establish by cogent evidence that there was no partition in the family. However, the plaintiffs have deliberately suppressed the material faet in their plaint that they were also altotted 30 acres of land each to their respective shares and as such both the Courts below hav® rightly not accepted the verslon of the plaintiffs and held that partition of land was effected by late Shyam Sundar Singh during his life time. 11. Once it is established that the property was duly partitloned and further that Dr. Bhanu Pratap Singh had executed a will in favour of defendant No.1 and thesame was not chaltenged by 12. the wife of the testator, the will executed In fevour of the defendant Is legal and executable. So far as judgment of the Supreme Court in the matters ofMahila Bajrangi (supra) cited by the plaintlffs isconGerned, it has been held by the Supreme Court in that matter that only on the basis of statoment recorded In mutation proeeedings ir» the absence of independent corroboration, the faetum of partition cannot b® established. However, In ttie present case, apart fram copies of revenue papers there are other ctocumentary evidences suGh as sale deeds, returns filed by the parties to estabtish that the partition was effected between th®shate-hoklers. Similarly, in the matters of Madan Lat (supra) th®Supreme Court has held that property raised and developed byjoint efforts of the members of a family is a joint fanrily property and is amenabte for partition. However, in thepresent case, both the Courts below haveatrlved at the concluslon ttiat partition took ptaee before 1954 and the propertywas purchased by Dr. Bhanu PratapSingh through his persenal earnmg as he was doctor by profession and sjnce there 1s no evidenee in rebuttal adduced t>y the plaintiffs, the above cited case law is not applicable in the present case; In viaw of the aforesaid discussion, 1 am of the consklersd vlew that there is no iHegality In the impugned judgment (»ssed by learned flrst appellate court and more so, no substantiat questkm of law is tnvolved for adjucBcation of this appeat. Accordingly, the appeal being substance-less is hereby dismissed at the motion stage itself. 13. There shall be no ordersastocost. Sd/-