FIRST APPEAL No. 39 OF 1977 Against the judgment dated 22.09.1976 and the decree dated 12.11.1976 passed by Sri Tarkeshwar Narain, the learned 3rd Additional Subordinate Judge, Arrah in Title Suit No. 79 of 1973/70 of 1974. ********* BABU HARENDRA PRASAD SINGH---------------Defedant-Appellant Versus SUDHAKAR PRASAD SINGH & ORS-------------Plaintiff-Respondents For the Appellant – Mr. V. Nath, Advocate For the Respondent – Mr. Binod Kumar Singh, Advocate Dated : 3rd day of September, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------ J U D G M E N T Mungeshwar Sahoo, J. The original defendant-appellant had filed this First Appeal against the judgment dated 22.09.1976 and the decree following thereupon signed on 12.11.1976 by Sri Tarkeshwar Narain, the learned 3rd Additional Subordinate Judge, Arrah in Title Suit No. 79 of 1973/70 of 1974 decreeing the plaintiff-respondent suit for partition. (2) Originally, Babu Gopal Saran Singh and Babu Rampal Saran Singh were the appellants. During the pendency of this appeal, Babu Gopal Saran Singh died. Therefore, his name was 2 expunged and in his place, his widow was substituted but she also died and her name was deleted as her legal representative was already on record as appellant no. 2 i.e. Babu Rampal Sharan Singh. Babu Rampal Saran Singh also died and thereafter, Babu Harendra Prasad Singh, who was respondent no. 2 in this appeal was transposed as appellant. The respondent no. 1, Dulhin Rani Devi, who was original plaintiff also died and in her place, her legal representatives have been substituted. (3) The plaintiff filed the aforesaid suit for partition of the suit property i.e. the house in ward no. 6, circle no. 2 of Ara town, claiming 7/10th share. (4) According to the plaintiff’s case, Babu Ugrah Singh was the common ancestor of the parties. He had two sons, namely Sheobaran Singh and Ramawtar Singh. Sheobaran Singh had a son, Maheshwar Prasad Singh, who had five sons namely, Ram Kishun Singh, Lal Kishun Singh, Bal Kishun Singh, Suraj Narain Singh and Chandar Prasad Singh. The defendants are the descendants of Suraj Narain Singh. The three sons namely Ram Kishun Singh, Bal Kishun Singh and Chandar Prasad Singh died issueless in jointness. Likewise, the second son of Ugrah Singh namely Ramawtar Singh had a son, Madan Mohan Prasad Singh, who had also five sons namely Sidheshwar Prasad Singh, Bindeshwari Prasad Singh, Bhuneshwari Prasad Singh, Rajeshwari Prasad Singh and Parmeshwari Prasad Singh. Madan Mohan 3 Prasad Singh, Rajeshwari Prasad Singh and Parmeshwari Prasad Singh died issueless in jointness. The plaintiff, Dulhin Rani Devi was the wife of Sudhakar Prasad Singh. Kedar Nath Singh and Paras Nath Singh are sons of Bindeshwari Prasad Singh. Sidheshwari Prasad Singh had a son, namely Divakar Prasad Singh. Bhuneshwari Prasad Singh had three sons namely, Sudhakar Prasad Singh, Prabhakar Prasad Singh and Bacchaji Singh. Chinta Devi is the wife of Babu Bacchaji Singh. (5) According to the plaintiff’s case, the suit house is the ancestral property and the descendants of both the sons of Babu Ugrah Singh had equal share in it. It is further alleged that Rajeshwari Prasad Singh had purchased 1/10th share of Lal Kishun Singh, son of Maheshwar Prasad Singh in court-auction, in execution of a mortgage decree. He had also purchased 1/10th share of Bal Kishun Singh, the third son of Maheshwar Prasad Singh by registered sale deed. Ramawtar Singh died in jointness with Sheobaran Singh. As such, Sheobaran Singh became the Karta of joint family. There had been separation between the family 2-3 years prior to cadastral survey operation but the parties were living in the same house jointly. On the death of the fourth and fifth son of Madan Mohan Prasad Singh namely, Rajeshwari Prasad Singh and Parmeshwari Prasad Singh, their interests devolved on the sons of Sidheshwar Prasad Singh, Bindeshwari Prasad Singh and Bhuneshwari Prasad Singh. Kedar Nath Singh, 4 Paras Nath Singh and Divakar Prasad Singh sold their shares in the suit house to the plaintiff and Chinta Devi by means of three registered sale deeds. Likewise, Sudhakar Prasad Singh, Prabhakar Prasad Singh and Bacchaji Singh and also Chinta Devi sold their shares in the suit house to the plaintiff. In view of the above purchases, the plaintiff has got 7/10th share in the suit house and the defendants have got 3/10th share. It is stated that the suit house is comprised within three holdings being holding nos. 534, 535 and 536 and the plaintiff is in possession of holding nos. 534 and 536 and also part of holding no. 535 whereas the defendants are in possession of part of holding no. 535 for the sake of convenience. (6) The further case of the plaintiff is that there had been no partition by metes and bounds and the parties are in possession according to their convenience. The house was in dilapidated condition, so, the plaintiff gave notice asking the defendants to contribute cost for repairing the house according to their shares but they refused. Thereafter, the suit was filed for partition as stated above. (7) The defendants on being noticed, appeared and filed a contesting written statement. According to them, the simple suit for partition is not maintenable. The western half of the suit house was only ancestral which had already been partitioned by metes and bounds about 90 years prior to institution of the suit. 5 So far eastern portion is concerned, it is alleged by the defendant that the same was purchased by Sheobaran Singh out of his own personal fund after partition by metes and bounds. Therefore, the plaintiffs have got no interest regarding the eastern portion of the house. The defendant also asserted that they have acquired title over eastern portion of the house by adverse possession. The further defence is that the sale deed executed in favour of the plaintiff are collusive, forged and without consideration. According to them, the plaintiff is living as member of the family of Sudhakar Prasad Singh in western portion only. According to the defendant also, the suit is bad for non-joinder of necessary party. The defendants have however, admitted the fact that Rajeshwari Prasad Singh had purchased the share of Bal Kishun Singh and Lal Kishun Singh in the western half portion of the suit house. (8) In view of the above pleadings of the parties, the learned Court below framed the following issues: 1. Has the plaintiff got any valid cause of action for the suit? 2. Is the suit as framed maintenable? 3. Is the suit bad for defect of the parties? 4. Is the suit undervalued and if so, is the court fee paid by the plaintiff insufficient? 5. Is there any unity of title and possession in respect of the suit house between the parties and if so, is the plaintiff entitled to get a decree for partition of the same according 6 to her? 6. Is the suit barred by law of limitation as well as by the principles of res judicata, estoppel, waiver and acquiescence? 7. Is the eastern half portion of the suit house exclusive self- acquired property of Sheobaran Singh and if so, whether the defendants have got their exclusive title to the same? 8. Have the defendants acquired any title to the eastern half portion of the suit house by virtue of adverse possession in complete exclusion and ouster of the plaintiff and of her vendors? 9. Had their been any partition of the western half portion of the suit house by metes and bounds about 90 years prior to the institution of the suit in the manner as alleged by the defendants? 10. To what relief or reliefs, if any, is the plaintiff entitled? (9) After trial, the learned Court below came to the conclusion that the plaintiff has got unity of title and possession in respect of the entire suit house and is entitled to get a decree for partition as claimed by her. The learned Court below also found that the defendants failed to prove that the eastern half portion of the suit house was the self-acquired property of Sheobaran Singh and also that the defendants failed to prove that there had been partition of the western half portion of the suit house. The learned 7 court below also found that the suit is not bad for defects of parties. On these findings, the plaintiff’s suit was decreed. (10) Mr. V. Nath, the learned counsel appearing on behalf of the appellant submitted that the learned Court below has misread the evidence and has wrongly given the finding that the defendants have failed to prove partition and that the eastern portion was self-acquired house of Babu Sheobaran Singh. The learned counsel further submitted that the learned Court below has also wrongly held that the suit is not bad for non-joinder of necessary parties. According to the learned counsel, the vendors of the plaintiff were necessary parties to the suit. The learned counsel further submitted that according to the plaintiff’s case, she purchased the interest of the coparceners and according to the plaintiff’s case herself, the sale deeds are void sale deeds because a coparcener has no right to sell undivided interest without the consent of other coparceners and if such transfer is made, it is void ab initio. The learned counsel further submitted that the eastern portion of the house is exclusively recorded in the name of the ancestors of the defendants but the learned Court below had wrongly held that it is not self-acquired property of Sheobaran Singh. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. (11) The learned counsel, Sri Singh appearing on behalf of the respondent submitted that it is not a suit filed by a co- 8 parcener for partition of the co-parcenery property. In fact, the suit has been filed by a purchaser, although, she is a family member, therefore, the vendors are not at all necessary to be added as party. None of the vendors are claiming interest in the property because they have already transferred their share in favour of the plaintiffs and moreover, the defendants themselves have admitted that two sons of Maheshwar Prasad Singh had also transferred their shares in favour of the plaintiff at Paragraph 27 of the written statement. The learned counsel further submitted that this was the only house in Arrah town where the descendants of Babu Ugrah Singh were residing jointly. So, it was left joint and the rest properties had already been partitioned. The learned counsel further submitted that the learned Court below has meticulously examined each and every evidence, available on record and given a finding that there had been no partition by metes and bounds and that the defendants failed to prove that the eastern portion is the self-acquired property. The learned counsel further submitted that there is no illegality in the impugned judgment and decree and therefore, it cannot be interfered with in this appeal. (12) In view of the above contentions of the parties, the points arises for consideration in this appeal is as to “whether the plaintiff has got unity of title and possession over the suit house” and “whether the suit house is joint property of the parties” or 9 “whether the eastern portion is the self-acquired property as alleged by the defendant” and “whether the impugned judgment and decree is sustainable in the eye of law?” (13) According to the plaintiffs, the suit house is joint property of the parties and they possess the same jointly according to their convenience. On the contrary, according to the defendants there had already been partition of the western portion of the suit house which was only the ancestral house and the eastern portion of the house is the self-acquired property of Sheobaran Singh, the ancestor of the defendant. The parties have adduced oral as well as documentary evidences to prove their cases. (14) P.W. 1 Bacchaji Singh, who is third son of Babu Bhuneshwari Prasad Singh, has stated that the branch of Sheobaran Singh had got half share. Rajeshwari Prasad Singh purchased interest of Bal Kishun Singh and Lal Kishun Singh. He has also stated that Rajeshwari Prasad Singh and Parmeshwari Prasad Singh died issueless and their interests devolved on their three brothers. This witness has also stated that Divakar Prasad Singh, Kedar Nath Singh and Paras Nath Singh had transferred their interests in favour of the plaintiff and Chinta Devi in the year 1967 through registered sale deeds which have been marked as Exhibit 1/a, 1/b and 1/c. He has also stated that subsequently Sudhakar Prasad Singh, Prabhakar Prasad Singh, Bacchaji 10 Singh(himself) and Dulhin Chinta Devi sold their interests to the plaintiff through registered sale deed, Exhibit 1, dated 20.09.1968. Therefore, this witness has admitted that he also sold his interest to the plaintiff. This witness has clearly stated that the suit house is still joint between the parties. (15) P.W. 2, P.W. 4, P.W. 5 and P.W. 6, namely Baijnath Ram, Bhardu Ahir and Sitaram Saw and Kedar Nath Pandey have all deposed that the parties are in joint possession of the suit house. P.W. 3 is a formal witness. P.W. 7 is Sudhakar Prasad Singh, who is husband of the plaintiff and after the death of plaintiff, he has been substituted as one of the legal representatives in this appeal. He has also stated that there had been no partition and Ramawtar Singh died in a state of jointness with Sheobaran Singh. He has also stated that the entire suit house is the ancestral joint family property of the descendants of Babu Urgah Singh. He has also stated that because of the fact that it was the only house in Arrah town, therefore, it was kept joint between the parties. From perusal of his evidence, it appears that suggestion has been given to him that partition took place regarding this house 100 years ago which he has denied. He has stated that Sheobaran Singh was the Karta in the year 1891 and the eastern portion of the suit house was purchased by him. He has also stated that 2-4 years prior to cadastral survey, the other properties of the parties were partitioned. This witness has 11 fully supported the case as made out in the plaint. (16) So far documentary evidences are concerned, Exhibit 1-series are the sale deeds. Exhibit 1/d is sale deed dated 05.01.1938 by which, Masomat Lagana Kunwar, widow of late Bal Kishun Singh had transferred her 1/10th interest in favour of Rajeshwari Prasad Singh. All these documents show that only interests of the parties were sold. Had there been partition by metes and bounds, the specific portion should have been shown in the sale deeds. (17) Exhibit 2-series are the receipts granted by Arrah Municipality in the name of plaintiff regarding the holding. These receipts have been proved by formal witness, P.W. 3. Exhibit 3 is simple Mortgage Deed by which, Suraj Narain Singh had executed the document in favour of Rajeshwari Prasad Singh on 25.11.1940 in which, he has clearly stated that he has got only 1/10th share in the entire suit house. It may be mentioned here that the defendant nos. 1 and 2 are the sons of said Suraj Narain Singh, therefore, the admission of Suraj Narain Singh will bind his sons. This document gives the fatal blow to the case of the defendant to the effect that the eastern portion is self-acquired property of Sheobaran Singh. (18) Exhibit 4-series are the notices issued by the plaintiff to the defendants requesting them to contribute for repair of the suit house. The postal receipts have been marked as 12 Exhibit 17-series. Exhibit 5 is the reply sent by the defendant to the said notice. In the reply, they have not asserted that the suit property is self-acquired property. Their case in the reply of notice is that the property had been partitioned 50 years ago. (19) Exhibit 6 is a sale certificate dated 20.06.1938 issued in Execution Case No. 7 of 1938 which shows that 1/10th share of Lal Kishun Singh in the suit house was auction purchased by Rajeshwari Prasad Singh in Execution of a Mortgage Deed. This document also proves that the entire suit house is ancestral house. The defendants themselves admitted in their written statement that Rajeshwari Prasad Singh has purchased the interest of Bal Kishun Singh and Lal Kishun Singh. (20) Exhibit 7 is the Cadastral Survey Khatiyan, which shows that the suit house i.e. plot no. 281/900 has been recorded in the name of all the co-sharers of both the branches i.e. Sheobaran Singh and Ramawtar Sigh. This Exhibit 7 was published finally in 1924 and there is mention of a house in the Khatiyan. These documents also show that suit house is the ancestral house. Had there been self-acquisition by Sheobaran Singh, then his name should have been recorded separately. Exhibit 9 is Municipal Survey Khesra with respect to plot nos. 5126A and 5126B which relate to the suit house published in the year 1923 wherein also, the names of both the branches are recorded. This again supports the case of the plaintiff that the suit 13 house is the joint family property. From perusal of Exhibit 16 series, which are assessment list also, it is clear that the suit house i.e. holding nos. 501 and 502, in the year 1954-55, were recorded jointly in the name of Rajeshwari Prasad Singh, Gopal Saran Singh and Bindeshwari Prasad Singh. Holding no. 503 was recorded in the name of Rajeshwari Prasad Singh. Exhibit 10- series are the Cadastral Survey Map and Municipal Survey Map from which, it appears that the C.S. Plots 281/900 corresponds to Municipal Survey Plot Nos. 5126A and 5126B. (21) To prove the case of previous partition, the defendants have also adduced evidences. D.W. 1, D.W. 2 and D.W. 3 are the tenants of the defendants. They have stated that the eastern portion is the self-acquired property. D.W. 4 is formal witness. D.W. 5, Gopal Saran Singh is defendant no. 5 himself. He has stated that the sale deed executed in favour of plaintiff are forged and collusive documents and without consideration. He has stated that the western half portion of the suit house was partitioned prior to 1891 and after partition, the eastern half portion of the suit house had been purchased by Sheobaran Singh. He has in his cross-examination admitted that Sheobaran Singh was the Karta of joint family prior to separation. The other witnesses are formal in nature and have proved different documents on behalf of the defendant. (22) Exhibit A-series and C-series are Municipality Tax 14 receipts in the name of Gopal Saran Singh. Exhibit-D is the Jamabandi return of the year 1900. The defendants have filed this document to show that Sheobaran Singh was separated from Madan Mohan Prasad Singh. It is the case of the plaintiff also, that the parties had separated prior to cadastral survey and this Exhibit-D relates to Tausi No. 245/1 of Village Gajiapur. All these documents, therefore, had been proved that the suit house was partitioned by metes and bounds. Exhibits E and F are Electric Bills. (23) In view of the above evidences adduced on behalf of the defendants, it cannot be said that there had been partition between the parties regarding the suit house by metes and bounds. From perusal of Exhibit-7, the cadastral survey record of right, Exhibit 9-series, the Municipal records clearly indicates that the suit house was recorded in the name of all the parties jointly. According to the plaintiff, the parties were residing according to their convenience in the suit house. The sale deeds in favour of the plaintiffs executed by the members of branch of Sheobaran Singh also shows that they had only transferred their 1/10th share in the entire suit house. In none of these documents, it is mentioned that eastern portion is self-acquired property of Sheobaran Singh. In view of the above discussion, I find that the suit house is joint family property and the defendants have failed to prove that there had been partition with regard to the western 15 portion of the house and after that partition, the eastern portion was purchased by Sheobaran Singh out of his personal fund. The plaintiff has been able to prove that the suit house is joint property. (24) So far acquisition made by the plaintiff is concerned, the only case of the defendant is that the sale deeds are fraudulent and without consideration. In my opinion, only statement has been made and there is nothing in support of this statement. Moreover, in this case, the defendant being the stranger to the sale deeds, executed by other family members in favour of the plaintiff, has no authority to challenge the passing of consideration. Moreover, mere statement without there being any basis cannot be accepted particularly when the persons who have sold their shares admit to have sold their shares to the plaintiff. (25) I, therefore, find that the learned Court below has rightly found these points in favour of the plaintiff. Accordingly, the findings of the learned Court below on these points are hereby confirmed. (26) The learned counsel Mr. V. Nath submitted that the transfer made by co-parcener without the consent of other co- parceners is void. The learned counsel relied upon A.I.R. 1953 S.C. Page 487(Sidheshwar Mukherjee vrs. Bhubneshwar Prasad Narain Singh and others) and A.I.R. 1966 S.C. Page 470(M.V.S. Manikayala Rao vrs. M.Narasimhaswami and 16 others) and submitted that transfer in favour of the plaintiffs are void transaction because the co-parceners have transferred their undivided interest without consent of other coparceners. (27) It may be mentioned here that it is the case of the plaintiff that there had been partition regarding the other properties between the parties. The suit house was kept joint because this is the only house in Arrah town. The parties are in joint possession according to their convenience. Therefore, according to the plaintiff itself, there was no co-parcenery family in existence. There had already been severance of the status of family and the parties were living jointly as tenants in common in the suit house. In such circumstances, it cannot be said that the suit house was co-parcenery property. (28) In a decision reported in 2009, volume 4, P.L.J.R., Supreme Court Page 225(Gajara Vishnu Gosavi vrs. Prakash Nanasaheb Kamble & ors.), the Hon’ble Supreme Court considering the above two decisions cited by the learned counsel for the appellant and other decision at Paragraph 9 held as follows: 9. In Kartar Singh vs. Harjinder Singh, AIR 1990 SC 854, this Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co- 17 sharers. It was further observed: “As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated.” In recent judgment in Ramdas vs. Sitabai & Ors., JT 2009(8) SC 224 to which one of us(Dr. B.S. Chauhan, J.) was a party placing reliance upon two earlier judgments of this Court in M.V.S. Manikayala Rao vs. M. Narasimhaswami & Ors., AIR 1966 SC 470 and Sidheshwar Mukherjee vs. Bhubneshwar Prasad Narain Singh & Ors., AIR 1953 SC 487, this Court came to the conclusion that a purchaser of a co-parcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property