APPEAL FROM ORIGINAL DECREE NO. 768 OF 1977 Against the judgment and decree dated 30.6.1977 and 21.7.1977 respectively in T.S. No. 19/74 by Shri Bankey Bihari Prasad, Sub-ordinate Judge, Bihar Sharif 1. Raj Kishore Mahto, son of Gopi Mahto, resident of village Kuttupur P.S. Silao, District- Nalanda 2. Smt. Rampati Devi, D/o- Mt. Bhansi Kuer,W/o- Late Dukhi Mahto, resident of village Goraur, P.S. Silao, District- Nalanda------ Appellants. Versus 1. Mt. Rohni Devi W/O- Shree Mahto 2. Rampeyare Mahto S/O- Siri Mahto 3. Sarjug Mahto S/O- Siri Mahto 4. Suresh Prasad S/O Rampeyare Mahto 5. Naresh Prasad S/O Rampeyare Mahto 6. Munnalal S/O Sarjug Prasad All residents of village Kutlupur, P.S. Silao, District- Nalanda ------- Respondents. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan,J. This First Appeal arises out of a Partition Suit No. 19 of 1974. The defendants who are the appellants have filed this appeal against the judgment dated 30th June, 1977 passed by the Sub-ordinate Judge, Biharsariff at Nalanda. The plaintiff-respondent filed a partition suit claiming share of her deceased husband Chhotu Mahto. The plaintiff‟s case is that Ram Dayal Mahto was the common ancestor who had a son Naurangi Mahto who was recorded in the survey records of rights as raiyat of the schedule 1 lands mentioned in the plaint. 2 Naurangi Mahto died leaving behind five sons Dular Mahto, Sita Mahto, Siri Mahto, Tori Mahto and Chhotu Mahto. Dular Mahto died in the state of jointness leaving behind his son Gopi Mahto who also died in 1953 in the state of joinness leaving behind one son and a widow, who are defendants No. 3 and 4 in this case. Sita Mahto died issueless in the state of jointness more than 25 years ago. His share of the properties came in possession of the other surviving coparcener by survivorship. Tori Mahto who is defendant no. 2 also had no successor as he remained unmarried. Chhotu Mahto died leaving behind his widow Keoli Devi (plaintiff) in the year 1945. It is the case of the plaintiff that she became a widow in the state of jointness with the members of the joint family therefore, she is entitled to the share of her husband Chhotu Mahto under the Hindu Women‟s Right to Property Act, 1937 and she becomes an absolute owner of the properties under the Hindu Succession Act of 1956. In order to establish her claim of partition, the plaintiff has pleaded that she was born in the year 1928 and was married to Chhotu Mahto in the year 1943 and her „Roksati‟ was 3 performed in the year 1944 and thereafter she lived with her husband at village Kutlupur. It is her specific case that Chhotu Mahto died one year after „Roksati‟ in the year 1945. The joint family looked after her till the time Dular Mahto, who was the „Karta‟ of the joint family, was alive, but after his death she was neglected, and ultimately her brother Bulakan Mahto took compassion of her and she began to live with him. The plaintiff demanded partition of ¼ share of the joint family which was refused by the members of the family and ultimately she had to file this suit for partition. Two sets of written statements have been filed. One set of written statement has been filed by the defendants no. 2 to 4 and the other by defendants no. 1, 5 and 6. The defendants Dular Mahto, Sita Mahto, Siri Mahto and Tori Mahto and their heirs do not have any conflict of interest as far as their respective cases are concerned. The defendants also admit the correctness of schedule 1 which is a list of the land belonging to the family except that they say that Khata No. 258 instead of 248 has been wrongly mentioned and Tauzi No. 10312 in the 4 schedule of the plaint has also been wrongly mentioned instead of 10314 with respect to Khata No. 302. It is their case that it has been gifted to the family „Yajman‟ i.e. the Brahmin (priest) who was attached to the family and as such it is said that Khata No. 302 as wrongly been included in the schedule of the plaint. The plaintiff has accepted the mistakes made in the plaint in schedule 1 and has also accepted that Khata No. 302 has been gifted to the family Brahmin (priest). The genealogical table is also accepted by the defendant. The defendant‟s case is that the plaintiff has no cause of action as Chhotu Mahto pre-deceased is father Naurangi Mahto who had died in 1935 leaving behind his four sons. Gopi Mahto died in the year 1947, and Sita Mahto died before Gopi Mahto. All of them died in a state of jointness. It is the specific case of the defendants that Chhotu Mahto husband of the plaintiff died in the year 1931 due to fever and the entire property in the suit came in the joint possession of Dular Mahto, Siri Mahto and Tori Mahto by rule of survivorship. The further case of the defendants is 5 that there was a partition amongst the three brothers. Siri Mahto partitioned from Dular Mahto and Tori Mahto. The later two remained joint until a partition took place between them in the year 1968. The partition in 1968 took place between Tori Mahto on one hand and Most. Batni widow of Gopi Mahto, son of Dular Mahto and Raj Kishore Prasad son of Gopi Mahto. It is said that Tori Mahto executed a registered deed of gift on 24.3.1972 in favour of Raj Kishore Prasad. Thus each of the three brothers separated. The defendants 2 to 4 in the written statements have given details of the land that were partitioned and came in their share which is described in schedule 1 of the written statement. These defendants after the partition had exchanged some lands with each other and have also purchased separate properties which have been described in schedule 2 of the written statement. These defendants denied the plaintiffs case and have specifically stated that the date of marriage and „Roksati‟ of the plaintiff given in the plaint is incorrect. These defendants admitted that the plaintiff is 6 entitled to maintenance and she is actually being maintained by the defendants and the suit has been brought at the instance and in collusion with the brother of the plaintiff. The defendants 5 and 6 in their written statements have also pleaded that after partition Siri Mahto has got his name registered in the records of right and has been paying rent to the Zamindar. Zamindari receipts in the name of other co-sharers were granted and the parties remained in possession accordingly and were granted separate Choukidar receipts. The case of the defendant is that Siri Mahto had also got lands in Mauza Mohiuddinpur Zenaro which were also the subject matter of partition between Dular Mahto and Tori Mahto. It is said that he has purchased some land at Kultupur from Most. Sohago Kuer wife of Ramkeshwar Mahto, over which the other defendants have no concern. The lands purchased by Siri Mahto have been described in schedule 3 of the written statement. Before examining the issues that arise in this case and the merits of the case it would be relevant to bring certain facts which are important in deciding this appeal. 7 During the pendency of the First Appeal the main contesting respondent i.e. Most. Keoli Devi respondent no. 1 died issueless on 17.11.1986. An application was filed under Order 22 Rule 10 to implead Ramashish Prasad as a party as it is the case of Ramashish Prasad that he has an interest in the suit by virtue of a gift deed executed by the plaintiff, Ramashish Prasad is the son of Bulakan Mahto. It may be recalled that Bulakan Mahto is the brother of Keoli Devi (plaintiff). In the said petition it has been mentioned that Keoli Devi respondent no. 1 had executed a deed of gift on 18.9.1986 in favour of the Ramashish Prasad and on the basis of the alleged gift deed dated 18.9.1986 Ramashish Prasad has prayed that he should be substituted in place of Keoli Devi. This Court while considering the petition for substitution has allowed the petition under Order 22 Rule 10 passed the follwing Order: “Substitution petition is accordingly allowed. The petition under Order 22 Rule 10 filed on behalf of Ramashish Prasad is also allowed and he is impleaded as respondent in this application. It is, however, made it clear that by 8 this order no right is created in favour of the impleaded respondent.” It would also be relevant to bring on record the application filed under Order 41 Rule 27 to adduce additional evidence. This application was allowed on 24.6.1994. By the said application the substituted plaintiff Ramashish Prasad sought to bring on record the four sets of sale proclamations of the years 1948 and 1949 purportedly to show that the plaintiff Keoli Devi has been accepted as a representative of her husband Chhotu Mahto. Keeping in view the intervening facts I shall commence to examine the case of the parties. The Trial Court framed an issue which reads “ Did Chhotu Mahto the husband of the plaintiff died before coming into force of the Hindu Women’s Right of Property Act, 1937 or after that?” besides which the court below framed other issues which relate to the unity of title and possession of the parties, and whether the plaintiff has a right to get the lands partitioned. The issue in italics according to the counsel for the appellants was referred by the Court and is contrary to the pleadings of the 9 plaintiff. In my view the first and most important issue is whether the plaintiff has been able to prove her case which is whether her husband died in 1945? Or even if it is accepted that the issue may be reworded by saying as the lower Court did whether Chhotu Mahto died after 1937? The court below has approached the case by examining the evidence and documents of the defendant without really discussing or examining whether the plaintiff has led evidence to show that her husband died after 1937 or as specifically pleaded by her in the year 1945. The Trial Court has decreed the suit on the basis of Exhibit „J‟ which is erroneous approach to the case. I, however, think it necessary to pursue and discuss the evidence led by the plaintiff with respect to her case as made out in the plaint. Keoli Devi has examined herself as P.W. 1. In the chief the plaintiff has stated that she was married at the age of 15 and she came to her husband‟s house at the age of 16 and became widow one year thereafter. In her cross examination, she says that Dular Mahto was the 10 „Karta‟ of the family when she came to her husband‟s house and states that Dular Mahto was 60 years old at that time. She further states that her husband was about the same age as she was and was a student and soon after her marriage he gave up his study and died 6-12 months later. At paragraph 8 she contradicts her own statement by saying that Sita Mahto died two years before she got married and she did not see him when she came to her husband‟s house, but in the same breath she had stated that she had met Sita Mahto when she came to her Sasural. At paragraph 11 the plaintiff says that she was never given her share after death of her husband, she was only maintained by her husband‟s family and at present she is living with her brother after the filing of the partition suit. At paragraph 12 this witness says that Tori Mahto performed the last rights of her husband and states that her husband was about 25 years of age when he died. She further states that Tori Mahto was 5 to 10 years older than her husband. From the evidence above, it is quite clear that the plaintiff has contradicted her own case as stated in the chief that she was 15 to 16 years at the time of her 11 marriage and her husband was also 15 to 16 years old and has contradicted the statement by saying that her husband died at the age of 25. “She has also accepted that after her husband’s death till the time of filing of the partition suit she was maintained by her husband’s family and was provided food and her other needs by the family.” The evidence of the plaintiff is not borne out by other witnesses examined on her behalf. In fact I find that P.W. 4 states that Chhotu Mahto died at the age of 32. P.W. 5 who is the uncle of the plaintiff says that his niece was married in the year 1943 and became a widow in the year 1945. In the cross examination he does not remember his own year of marriage and cannot even state the year or date of giving evidence in Court as such this witness is completely unbelievable. P.W. 6 claims to have attended the marriage of the plaintiff. In his cross examination he has stated that he cannot recall in which year the marriage took place. According to him his father died sometime in the year 1958-59 which was about 10 to 12 years after the marriage of Keoli Devi. This witness is hardly reliable in view of the fact that he is not directly concerned with the 12 affairs of the family and he has admitted that he cannot recall the year of the marriage of the plaintiff. P.W. 7 demolishes the case of the plaintiff as according to him Chhotu Mahto was 10 years old in the year 1960. He has further stated that he lives in Kolkata and as such this witness also does not support the plaintiff‟s case. P.w. 9 who is the Purohit in the village claims that the marriage of Chhotu Mahto took place in the year 1942 which contradicts the plaintiff‟s stand that she was married in the year 1944. Similarly D.W. 10 also states that the marriage took place in the year 1942 and is confused regarding the age of Chhotu Mahto as according to him Chhotu Mahto got married at the age of 10 or 12 years. P.W. 11 and 13 are heresay witnesses. On perusal of the evidence aforesaid it would be quite clear that the plaintiff has not been able to show that her husband died in the year 1945 or even after 1937. It would be important to examine the evidence of the defendants with regard to the date of death of Chhotu Mahto. D.W. 1 Ram Pyare Mahto is mainly a witness on partition but he has also stated that the plaintiff lived sometimes in 13 the house of Dular Mahto and sometimes with the other brothers. Regarding the date of death he says that he has heard from his father that Chhotu had died one year after the great earthquake. D.W. 1 Bhatni Devi examined on behalf of defendants 2, 3, 4 and 7 is the wife of defendant no. 4 i.e. Gopi Mahto. She has stated in her evidence that Chhotu Mahto died before Naurangi Mahto and has stated in fact Chhotu Mahto died before she got married. She has also given evidence on partition between the brothers which should be discussed later. This witness has specifically stated that Tori Mahto is very ill and therefore, he has not come to give evidence in this case. According to this witness, the plaintiff used to live with any one of the family members, with whomever she pleased. She has also stated that plaintiff used to live with her or sometimes with Tori Mahto and would also often visit her brother‟s house. Siri Mahto brother of Chhotu Mahto has also come forward to give evidence and has stated that Chhotu Mahto died 45-46 years prior to giving the evidence which has been recorded on 27.6.1977. This witness supported his case. In his cross 14 examination he has supported his examination in chief by saying at paragraph 8 that Chhotu Mahto probably died at the age of 18 to 19 years. He claims that he was 25 years old when Naurangi died. The defendant witnesses have supported the case of the defendant by stating that Chhotu Mahto died just after the great earthquake. The main witnesses who were examined with respect to the death of Chhotu Mahto are Bhatni Devi and Gopi Mahto who are family members and closely related to Chhotu Mahto and as such their evidence cannot be disregarded. Other witnesses have stated that they had heard about Chhotu‟s death from their fathers or in the village and have only indirectly support the date of death of Chhotu Mahto as being after the great earthquake. Judicial notice can be taken of the fact that the earthquake happened in January, 1934. The Court below while dealing with the issue regarding the date of death of Chhotu Mahto has stated that the evidence has no meaning as both sides have led evidence to support their own case. In fact the Court below has stated that the date of death of Chhotu Mahto is only of academic importance. I am afraid that I cannot 15 accept the reasoning of the Trial Court. Let us examine the documentary evidence. The Court has further referred to documents brought on record by the defendants to show that Chhotu Mahto died in the year 1931. The documents namely Hathchitha of the Choukidar (ext. A), the suit register extract (ext. K) and the „Mossana‟ (i.e. plaints) of that suit (ext. J) have been heavily criticized by the Trial Court and the Trial Court has rejected the case of the defendant regarding the death of Chhotu Mahto on the basis of these documents, as according to the Court below ext. J demolishes the case of the defendant completely. I shall now deal with each of these exhibits. The Hathchitha of the Choukidar which is a document showing the date of death as maintained by the Choukidar of the village which is ext. A and has been proved by D.W. 4 with objection. D.W. 4 Chandeshwar Paswan is the Choukidar of the village. The Hathchitha was maintained by his father and he produced the document to show that Chhotu Mahto died on 28.8.1931. It may be mentioned here that this document is very old. The paper on which it is 16 written justifies the age of the document which is more than 30 years. The document is in the “Kaithi” script. The papers have become worn out and are stitched together which disclose that it is indeed a very old document. The Court below has rejected this document on the ground that the Choukidar who produced this document has stated that his father the erstwhile Choukidar could not read and write. The Court below did not believe the witness who produced the document. I have my reservations on the findings of the Trial Court, after examining the documents. There was no occasion for Choukidar to get prepared a document in the year 1931 in the hope and believe that it would help the defendants in the future. The objection of the Court that the Choukidar could not read & write is not really valid as in the old days there was a „Munshi‟ who would write on behalf of the entire village. The next document (ext-K) which is certified copy of suit register from the Court of Munsif, Bihar. It appears that a suit was filed on 16.9.1941, by the plaintiff landlord Md. Haroon. The Court has accepted the genuineness 17 of this document and ruled out the objections of the plaintiffs. The Mosanna (ext-J) which is really the plaint shows that Md. Haroon is the plaintiff whereas the defendants have been described as Dular Mahto, Sita Mahto, Siri Mahto, Tori Mahto and Most. Keoli Devi original plaintiff. This Court has interpreted this ext-J which was dated 16.9.1941 to hold that the defendants have treated the plaintiff to be a co owner in the suit and as such this Court has held that the defendants have recognized her as a coparcener and this document itself would entitle the plaintiff to partition of the family properties. While discussing Ext.-J, I would also like to refer to the documents which have been brought by way of additional evidence which is an attachments certificate to be decree in the rent suit arising out of this suit for recovery of rent. Argument has been made on behalf of the plaintiff, rather the substituted heir of the plaintiff to show that this document proves that the defendants had treated the plaintiff to be a coparcener in the joint family property. The counsel for the appellants have contended that Ext.-J has been filed by the ex-landlord who 18 happens to be a Muslim and he has made all the surviving members of Naurangi Mahto‟s family as party in the suit and the ex-landlord is not expected to know the status within the family with respect to their claims in the joint family property. After considering the rival contentions and the reasonings given by the Court below I find and hold that Ext.-J or the additional evidence filed on behalf of Ramashish Prasad does not give a right to the plaintiff in the joint family property. I may also mention here that no written statement to deny or support the claim of rent or any other fact was made by the defendants or anybody else and as such Ext.-J cannot confer any right on Keoli Devi by virtue of her being made party along with the surviving members of Naurangi Mahto‟s family. This document Ext.-J has been brought on record merely to show that the Mosanna is of the year 1941 which indicates that Chhotu Mahto had died before 1941. Surprisingly the Court has based its finding on Ext.-J which has been filed with objection to say that Chhotu Mahto died after 1937 which in my opinion could not have been done by the Trial Court for the reasons aforesaid. 19 Having considered the oral and documentary evidence produced by the plaintiff and defendant I find that I cannot agree with reasoning of the Court below. Firstly, it is not correctly stated that plaintiff has supported her case by leading oral evidence to support her case. In fact, she has not been able to prove that her husband died after 1937. Secondly, on the contrary the defendants witness have been able to show that Chhotu Mahto died before 1937 and that he predeceased his father. Regarding the case of the defendants that Chhotu predeceased his father, the plaintiff is virtually silent and even while cross examining the defendants witness she would have tried to dislodge this part of their case. I, therefore, find that the plaintiff has failed to prove her case in order to obtain a decree in her favour. The question therefore, arises that what would be rights of Keoli Devi widow of Chhotu Mahto under the Hindu Law. The case of the defendant is that Chhotu Mahto the predeceased his father Naurangi Mahto. The Supreme Court has held in Vaddeboyina Tulasamma & Ors Vs. Vaddeboyina Sesha 20 Reddi‟s case reported in A.I.R. 1977 S.C. 1944 that even before the enactment of the Hindu Succession Act, 1937 a widow had the right in the property inasmuch as she was entitled to maintenance. The evidence laid by the plaintiffs in this point is that she was being maintained as a family member and till Dular Mahto was the „Karta‟ of the family and after his death she had to face problems. From the evidence of the plaintiff herself, it is