FIRST APPEAL No. 255 OF 1997 Against the Judgment and Decree dated 14.05.1997 passed by Md. Abid Ansari, Subordinate Judge I, Aurangabad in Partition Suit No.71 of 1995. RAM CHANDRA YADAV & ORS ………. Defendants-Appellants Versus YAMUNA YADAV & ORS ……… Plaintiffs-/Respondents ******** For the Appellant : Mr. Dhruv Narayan, Sr. Advocate Mr. Jitendra Prasad Singh, Advocate Mr. Abhishekh, Advocate with him. For the Respondent : Mr. Amrendra Narayan, Advocate Mr. Awadh Kishore Singh, Advocate --------- Dated : 21stday of June, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendants have filed this First Appeal against the Judgment and Decree dated 14.05.1997 passed by Mr. Abid Ansari, the learned Subordinate Judge I, Aurangabad in Partition Suit No.71 of 1995 decreeing the plaintiff-respondent partition suit to the extent of 1/4th share. 2. The plaintiff-respondent No.1 & 2 filed the aforesaid partition suit praying for partition of their 1/4th share in the suit land and also to set aside the deeds of gift dated 28th February, 1994 and 18th July, 1994. The plaintiff’s case in short is that Mangar Yadav died in 1980 leaving behind his son Ram Balak Yadav, the defendant No.1 and grand son, Ram Chandra Mungeshwar Sahoo, J. - 2 - Yadav (defendant No.2-appelant No.1) and Jamuna Yadav (plaintiff No.1 respondent No.1). Both sons of Aklu Yadav, Mangar Yadav and Ram Balak Yadav had business of milk and used to keep cows and buffaloes and they earned sufficient income from which they purchased landed property mentioned in Schedule ‘A’ of the plaint. The property is joint family property of the parties. Aklu Yadav, the second son of Mangar Yadav died in the year 1940. After death of Mangar Yadav, Ram Balak Yadav became karta of the joint family. The defendant No.2 was literate so the money and savings of the joint family were given to him who used to purchase the lands in the name of different members of the family, out of the said joint family fund. Defendant No.1 is under the influence and coercion of defendant No.2. So the defendant No.2 got partition suit No.85 of 1989 filed in the name of defendant No.1 Ram Balak Yadav which was dismissed for default. The suit property is still joint and there had been no partition between the parties, therefore, the plaintiff has got 1/4th share. The plaintiff came to know that defendant No.2 got created sham and collusive deeds of gift dated 28th February, 1994 and 18th July, 1994 in the name of his sons and daughters-in-law by defendant No.1 in respect of joint family property. Ram Balak Yadav is very old aged about 90 years and has lost his mind and understanding as well as hearing as such the said deeds of gift are void and executed by a coparcener in respect of copercenary property. The donee never came in possession over the disputed land. The gift deeds are void. The plaintiff demanded partition but the defendants refused. Hence the suit for partition was filed. 3. On being noticed, the defendant No.1 to 7 appeared and filed a contesting written statement. Their main defence is that there is unity of title and possession between the parties. There was partition in 1989 - 3 - amongst Ram Balak Yadav, Jamuna Yadav and Ram Chandra Yadav by metes and bonds. The plaintiff got the partition suit No.85 of 1989 filed in the name of Ram Balak Yadav with malafide intention. Though Ram Balak Yadav was separate from before. Ram Chandra Yadav and Jamuna Yadav were also separate from each other. Ram Balak Yadav voluntarily and consciously executed the gift deeds in favour of Smt Savitri Devi, Rajendra Yadav, Satendra Yadav and Sanjay Kumar and donee came in possession over the donated land. In the partition, Schedule I land of written statement was allotted to Ram Balak Yadav and Schedule II land of written statement was given to Jamuna Yadav and rest land to Ram Chandra Yadav. Ram Chandra Yadav was in military service from 1958 to 1988 and from the earnings of his service, he acquired the properties in the name of his wife and sons bearing plot No.613, 695, 594, 675 of Khata No.44 and plot No.1661 of Khata No.18 and plot No.1761 and these property are never the joint family properties. The gift deeds are valid and binding on the plaintiff. There was no undue influence of coercion on Ram Balak Yadav. 4. It may be mentioned here that the original defendant No.1 Ram Balak Yadav died during the pendency of the suit after filing written statement jointly with defendant No.2 to 7. On his death, her only daughter Indrawati Devi was substituted as defendant No.1(a) who was filed a supporting written statement supporting the case of plaintiff, taking a contrary stand to that of her father, the original deceased defendant No.1, Ram Balak Yadav. 5. On the basis of the aforesaid pleadings, the learned Court below framed the following issues : (i) Is the suit as framed maintainable? (ii) Have the plaintiffs cause of action to sue? - 4 - (iii) Is the suit hit by section 4 (b) and 4 (c) of Consolidation of Holdings Act? (iv) Is there unity of title and possession of the parties? (v) Are the plaintiffs entitled to any share if any to what extent? (vi) Are the deeds of gift dated 28.02.94 and 18.07.94 valid? (vii) Are the plaintiffs entitled to any relief? 6. After trial, the learned Court below came to the conclusion that the defendants have failed to prove the partition of the properties. In the absence of partition of properties, there is unity of title and possession of the parties. The doner did not donate his mere interest in the property but he donated the specific property without the consent of other members of joint family. So, the deeds of gift are not valid and, therefore, decreed the plaintiff’s suit and also held that the defendant No. 1(a), Indrawati Devi has half share in the suit property. 7. The learned senior counsel, Mr. Dhruv Narayan appearing on behalf of the appellant submitted that the learned Court below has misunderstood the case of the parties and approached the case in wrong angle. The defendant No.1, the doner Ram Balak Yadav filed the written statement admitting the fact that he had gifted the entire property after partition to the appellants. The said defendant No.1, Ram Balak Yadav, has also verified and signed the written statement but, unfortunately, he died prior to giving evidence and on his death when her daughter was substituted, she could not have been allowed to take contrary stand against her father. According to the learned counsel, she could not have allowed to file separate written statement in view of provision as contained in Order 22 Rule 4 sub Rule 2 C.P.C. The only option of Indrawati Devi was to adopt the written statement of her father. But the learned Court below has wrongly allowed her to file written statement and has given much emphasis - 5 - to her evidence. The learned counsel further submitted that admittedly partition suit No.85 of 1989 was filed by Ram Balak Mahto, therefore, the coparcenary status severed on the date of presentation of the plaint. When the coparcenary status of the family seized, there was no bar to execute gift deeds by defendant No.1. 8. Mr. Narayan further submitted that the defendant No.2-appellant No.1 was in military service from the year 1958 and he retired in the year 1988. Out of his income, he purchased the property in the name of his wife and sons which have also been included in the suit for partition and the learned Court below has wrongly held that the said properties have been acquired by the joint family fund without their being any evidence in support of joint family fund. The parties were living separately prior to 1989 and they partitioned the properties by metes and bounds and then they left pairvi of partition suit No.85 of 1989 and allowed the same to be dismissed for default. The learned Court below has wrongly appreciated the evidence available on record. There are overwhelming evidence on record to show that there was no coparcenary family and that the properties which are in the name of the appellants and wife of appellant No.1 is self-acquired property of the appellant and that original defendant No.1 was competent to execute the gift deeds but the learned Court below wrongly applying wrong principal and placing wrongly onus on the appellant decreed the plaintiff-respondent’s suit. 9. The learned counsel further submitted that the plaintiffs have got no locus standi to challenge the gift deeds because had there been no gift deeds executed by Ram Balak Yadav then also his share would have gone to his daughter and not to the plaintiffs. In such circumstances, Indrawati Devi was the best person to have challenged the gift deed executed by her - 6 - father but she did not make any counter claim in her written statement. She simply filed written statement supporting the plaintiff case which was entirely against the written statement filed by Ram Balak Yadav. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to beset aside and the plaintiff’s suit be dismissed. 10. On the other hand, the learned counsel appearing on behalf of the plaintiff-respondent submitted that the appellants in their written statement at paragraph10 have admitted the case of the plaintiff pleaded at paragraph 1 & 2 of the plaint and, therefore, now they cannot be permitted to say that the properties which are in the name of the appellants are their self-acquired property. The learned counsel further submitted that the defendant-appellant failed to prove the extent of income from his service and, therefore, failed to prove that the properties covered under Ext. ‘B’ series are self-acquired properties. Since there was no partition between the parties, Ram Balak Yadav could not have gifted his undivided share because a coparcener has no right to gift coparcenary property without the consent of the other coparcenary. Therefore, the learned Court below has rightly held that the gift deeds are invalid. Indrawati Devi on being substituted had independent right to contest the suit and, therefore, the learned Court below has rightly allowed her to file written statement. The learned Court below has considered all the evidences and has given sound reasoning in support of its finding and, therefore, the findings of the learned Court below warrants no interference in First Appeal. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. 11. In view of the above submission of the parties, the points arises for consideration in this appeal is as to whether the parties have got unity - 7 - of title and possession over the suit property or there had been partition between the parties and whether the properties covered under Ext.‘B’ series are joint property or self acquired property of appellants and whether the gift deeds executed by original defendant No.1 are valid, genuine or not and whether the impugned Judgment and Decree are sustainable in the eye of law? 12. It is admitted case that Mangar Yadav had two sons, namely, Aklu Yadav and Ram Balak Yadav. Aklu Yadav died in 1940 leaving behind Ram Chandra Yadav and Jamuna Yadav. Jamuna Yadav is plaintiff No.1. His brother, Ramchandra Yadav is defendant No.2 and Ram Balak Yadav, the second son of Mangar Yadav was the original defendant No.1. This defendant No.1, Ram Balak Yadav filed the written statement jointly with the appellants. According to the plaintiff’s case there had been no partition. The defendant No.2 got the partition suit No.85 of 1989 filed by Ram Balak Yadav whereas the appellant’s case is that plaintiff got the said suit filed by Ram Balak Yadav. Therefore, admittedly partition suit No.85 of 1989 was filed by Ram Balak Yadav for partition of the suit property. The parties have adduced oral as well as documentary evidences in respect of their claims of partition. 13. The defence of the appellant is that Ram Chandra Yadav was in military service since 1958. In paragraph 12 of the written statement, it is specifically mentioned giving the particulars of the properties which are standing in the name of the appellants. The appellants have also filed Ext. ‘B’ series which are the sale deeds. Now, let us consider the evidences adduced by the parties. P.W.1, Surendra Yadav who is plaintiff No.2 has stated that he is plaintiff No.2. Mangar Yadav was their ancestor. He had two sons Aklu Yadav and Ram Balak Yadav. Both were joint and were - 8 - carrying on joint milk business. Out of that milk business income, they purchased the properties. There was no partition between them. The suit land is still joint. Ram Balak Yadav was aged about 90 years and because of oldness, he was incapable of understanding the affairs. He had no authority to execute the gift deeds and donee never came in possession of the property. Ram Chandra Yadav was the karta of the family. This is the only statement made in his examination-in-Chief. Specific evidence has been adduced by this witness who is plaintiff No.2 himself to the effect Aklu Yadav and Ram Balak Yadav had joint milk business and out of that joint milk business, land property had been purchased. It may be mentioned here that in the plaint at paragraph 4, it is the specific case that Mangar Yadav and Ram Balak Yadav had milk business and there was sufficient income and out of that saving and income purchased the lands detailed in Schedule I of the plaint. So far the evidence of P.W.1 is concerned, there is no such evidence to the effect that Mangar Yadav and Ram Balak Yadav purchased the Schedule I land of the plaint. Admittedly, Ext. ‘B’ series stands in the name of appellants. Ext. ‘B’ is the registered sale deed dated 30.05.1972 which is in the name of Smt. Kamla Devi, wife of defendant No.2. Ext. ‘B/1’ is the registered sale deed standing in the name of Ram Prasad Yadav, Rajendra Yadav, Satyendra Yadav and Sanjay Yadav son of defendants No.2 which is dated 24.06.1975. Ext. ‘B/2’ is the registered sale deed dated 19.09.1980 in the name of Ram Prasad Yadav son of defendant No.2 and Ext. ‘B/3’ is the sale deed dated 27.12.1968 in the name of Ram Chandra Yadav, the defendant No.2 himself. Admittedly, Aklu Yadav died in 1940. In the plaint, it is stated that the property has been acquired by Mangar Yadav and Ram Balak Yadav whereas in the evidence as stated above P.W.1 has stated that Aklu Yadav and Ram Balak Yadav acquired the - 9 - property. Therefore, the evidence is contrary to the pleading. All the sale deeds are in the name of the appellants which have been acquired after death of Aklu Yadav. P.W.2 has only stated that the suit land is joint and there has been no partition and that is the evidence of P.W.3 also. 14. D.W.1, Ram Chandra Yadav who is defendant No.2 appellant No.1 has stated that the lands of plaintiff is separate and the lands of defendants is separate and the schedules have been given in the written statement. Ram Balak Yadav was also separate who executed gift deeds in favour of the sons and daughter-in-law of defendant No.2 who came in possession of the property of Ram Balak Yadav. He was in military service since 1st February, 1958 to 31st August, 1988. He was never the karta of family. When Ram Balak Yadav executed the gift deeds, he was hale and hearty and his mental condition was well. In 1989, Ram Balak Yadav had filed partition suit and the plaintiff Jamuna Yadav was doing pairvi on behalf of Ram Balak Yadav. All the parties of their freewill partitioned the property in the year 1989. At paragraph 8, he stated that partition took place in the year 1989 through Panchyati and the entire property was partitioned in three parts vide paragraph 9. The purchased properties were given to the appellant. At paragraph 11, he has stated that after partition, they left pairvi in that partition suit No.85 of 1989 and allowed it to be dismissed for default. At paragraph 19, he stated that he was cultivating his land by tractor. At paragraph 22, he stated that prior to partition, their mess and residence was separate. D.W.2 has stated that there had been partition between Ram Balak Yadav, plaintiff No.1 and defendant No.2. Ram Balak Yadav has got 12 bighas land which is now in possession of the appellants. The mental condition of Ram Balak was good till his death. This is the evidence of D.W.3, D.W.5. D.W.6 and D.W.7 who are attesting witness to - 10 - the gift deeds who have proved the gift deeds as Ext. ‘A’ and ‘A/1’. D.W.8 is the scribe of the gift deeds. All these witnesses D.W.7 & 8 have stated that the contents of the gift deeds were read over and explained to Ram Balak Yadav who after understanding the contents and implications thereof signed the gift deeds. 15. D.W.12 is Indrawati Devi. She has stated that her father and Jamuna Yadav and Ram Chandra Yadav are member of joint family. On the death of her father, she became party in the suit. Her father died at the age of 90 years. 3-4 years prior to his death, his mental condition was bad and because of illness, he was bed-ridden. She had joint possession with the parties. Her father never executed any gift deeds and donee never acquired any title. This is her evidence which is in support of the plaintiff’s case. 16. As stated above, it is admitted that partition suit was filed by Ram Balak Yadav. No doubt plaintiff’s case is that suit was got filed by defendant No.2 but there is no evidence to that effect. It is the specific case of the defendant that the plaintiff No.1 got it filed by Ram Balak Yadav. We have seen in the evidence that Ram Chandra Yadav has explained that after filing the suit, there was partition between them and, therefore, they left pairvi in that partition suit. Defendant No.2 and the plaintiff No.1 were defendants in that suit which was filed by Ram Balak Yadav. Be that as it may it is the admitted position that a plaint was presented by Ram Balak Yadav for partition what is necessary to constitute partition is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status and thereby puts an end to the coparcenary with right of survivorship - 11 - and such separated member held from the time of disruption of joint family as tenant in common. Such partition has an impact of devolution of shares of such members. It goes to his heirs displacing survivorship. In 1980 (2) Supreme Court reports page 1130 Kalyani Vs. Narayanan and Ors, the Apex Court at paragraph 3 has held as follows : “3. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint family status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property. A disruption of joint family status by definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right. A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broader sense.” 17. In view of the above settled principal of law as soon as the plaint was presented by Ram Balak Yadav, there will be presumption that coparcenary status of the family ceased. Therefore, in the present case, the coparcenary status of the family ceased in the year 1989 itself. The gift deeds were made in the year 1994. Admittedly at that time, the share of the deceased Ram Balak Yadav was defined. In such circumstances, it cannot be said that Ram Balak Yadav had no authority to execute gift deeds of his property. Moreover the appellant No.1 in his evidence has specifically - 12 - explained that after filing the suit by Ram Balak Yadav, there had been complete partition between the parties and the properties have been allotted separately to Ram Balak Yadav. In the written statement, specific schedules have been prepared and in support of the same, the appellant no.1 gave specific evidence to that effect. It may be mentioned here that this fact was admitted by original defendant No.1, Ram Balak Yadav in written statement. Ram Balak Yadav filed joint written statement with the appellant. He admitted that there was partition and Schedule I land of the written statement was allotted to him in that partition. He also admitted in the written statement that he gifted the properties to the appellants by two gift deeds, Ext. ‘A’ and A/1’. He signed the written statement and also verified the written statement along with the other defendants. No doubt, prior to his examination, he died on 07.01.1996. It may be mentioned here that both the gift deeds were execited in the year 1994. During this long two years, there was no challenge to the gift deeds. He himself filed written statement to support the fact of execution of gift deeds by him. Nowhere any case is made out either by the plaintiff or by Indrawati Devi that he had not signed the written statement or that his signature in the written statement has been procured by misrepresentation or that the statements made in the written statement are not his statement or that he had not verified the written statement. No whisper has been made regarding this fact. The learned Court below simply disbelieved the case of gift on the ground that Ram Balak Yadav was not examined. In my opinion, this approach is wrong. Since he died, he could not have been examined in support of his joint statement. However, his statement is admissible under Section 32 of the Indian Evidence Act. According to the plaintiff at the time of death or 3-4 years prior to his death, his mental condition was not good. - 13 - Except this statement in the pleading and evidence, there is nothing on record to show that he was of unsound mind. On the contrary, after two years of execution of gift deeds, he filed the written statement. He executed the Vakalatnama, appointed his Advocate, signed the written statement and also verified the written statement. This clearly indicates sound mind of Ram Balak Yadav on the date of filing written statement. Unfortunately,