APPEAL FROM APPELLATE DECREE NO.174 OF 1996 --------- Against the judgment and decree dated 10.05.1996 passed by Sri Jugal Kishore Prasad, District Judge, Jehanabad, in Title Partition Appeal No.14 of 1994 affirming the judgment and decree dated 28.09.1994 passed by Sri J.N. Singh Sardar, Subordinate Judge Ist, Jehanabad, in Title Partition Suit No. 82 of 1991. --------- 1.Smt. Lalita Devi, daughter of Jaglal Mistry 2.Smt. Sushila Devi wife of Jaglal Mistry 3. Surendra Kumar 4. Pappu Kumar 5.Pintu Kumar, Sl. Nos. 3 to 5, sons of Jaglal Mistry, All are residents of Muhalla Horilganj, P.S. &District Jehanabad …Defendants-Appellants-Appellants. Versus Sarswan Kumar @ Shrawan Kumar, son of Bhadai Mistry, resident of village Jirapura, P.S. Arwal, District Jehanabad ….Plaintiff-Respondent-Respondent. --------- For the Appellants : M/s S.K. Mazumdar, Sr. Advocate, Bishwanath Chaudhary & Malika Mazumdar, Advocates. For the Respondent: M/s Birendra Kumar & Manish Kumar,Advocates P R E S E N T THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN S.N.Hussain,J. Heard learned counsel for the parties. 2. This second appeal has been filed on behalf of the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. This second appeal arises out of Title (Partition) Suit No. 82 of 1991, which was filed by the sole plaintiff-respondent-respondent for the following reliefs :- (a) declaration of 1/5th share of the plaintiff from the entire joint family properties mentioned in Schedule B of the plaint and, thereafter, appointment of a Pleader Commissioner for separating - 2 - Takhta between the plaintiff and the defendants; a(i) restraining the defendants by order of interim injunction from alienating any portion of the suit property till disposal of the suit; a(ii) declaring the deed of gift dated 03.05.1989 purported to have been executed by defendant no.1 in favour of defendant no.2 to be illegal, void and not binding upon the plaintiff; (b) cost of the suit; and (c) any other relief or reliefs to which the plaintiff is entitled to . 4. The claim of the plaintiff was that there was one Madhir Mistry, who had a wife Dhanmatiya and five sons, namely, Arjun Mistry, Sarju Mistry, Nanhaku Mistry, Deolal Mistry and Jaglal Mistry and in the year 1985 Dhanmatiya died whereafter in the year 1981 Madhir Mistry also died. It was also claimed that there was partition between the family before and after the death of Madhir Mistry, according to which Jaglal Mistry got the suit property. These facts are not disputed. Genealogical Table 5. It was further claimed by the plaintiff that Jaglal Mistry - 3 - (defendant no.1) was married to Budhia Devi who died in the year 1985 leaving behind a son Sarwan Kumar (plaintiff). He also claimed that the said defendant no.1 Jaglal Mistry had a second wife Sushila Devi (defendant no.5) from whom he had three sons, namely, Surendra ( defendant no.2), Pappu (defendant no.3), Pintu (defendant no.4) and a daughter Lalti Devi. Hence the plaintiff claimed that he had a specific share in the suit properties and Jaglal Mistry (defendant no.1) had no right, title or interest to execute a deed of gift dated 03.05.1989 (Ext.D/1) in favour of his wife Sushila Devi with respect to the entire suit property. Thus, it was claimed that the said gift-deed was illegal and void conferring no right, title or interest in the donee and, accordingly, the plaintiff had a share in the suit property, which was sought to be partitioned. 6. On the other hand, claim of the defendants was that the suit property along with other properties were self acquired properties of Madhir Mistry and when Madhir Mistry partitioned his property amongst his sons giving each of them specified land, out of which the suit property was given to Jaglal Mistry, which became his exclusive property and his wife and children had no right, title, interest or share in the same. It is further claimed by the defendants that in that capacity Jaglal Mistry executed gift deed dated 03.05.1988 (Ext. D/1) in favour of his wife Sushila Devi (defendant no.5) with respect to the entire suit property, which was absolutely legal and proper and hence the plaintiff had no share in the suit property and his claim was absolutely frivolous. It was also claimed that plaintiff Sarwan Kumar was not the son of Jaglal Mistry rather he was son of another person Bhadai Mistry and was only inducted as a tenant in the house of Jaglal Mistry. 7. After considering the respective pleadings of the parties, the - 4 - learned trial court framed the following issues for deciding the said partition suit:- (i) Is the suit as framed maintainable ? (ii) Has the plaintiff got cause of action for the suit ? (iii) Is the suit barred by estoppel, waiver and acquiescence ? (iv) Is the suit barred under the provision of Specific Relief Act ? (v)Whether Sarwan Kumar ( plaintiff) is son of Jaglal Mistry (defendant no.1) or he is son of Bhadai Mistry of village Zinoura, P.S. Arwal, District Jehanabad ? (vi)Is there unity of title and possession between the plaintiff and defendants over the suit land ? (vii) Is the deed of gift dated 03.05.1989 executed by Jaglal Mistry (defendant no.1) in favour of his wife Sushila Devi (defendant no.5) illegal, void and not binding upon the plaintiff ? (viii) Is the plaintiff entitled to get a decree for 1/5th share in the suit property described in the plaint ? (ix) To any other relief or reliefs the plaintiff is entitled to ? 8. Thereafter the evidence were led and arguments were made on behalf of both the parties after considering which the learned Subordinate Judge- I, Jehanabad decreed the suit on contest with cost vide his judgment and decree dated 18.09.1994 after arriving at the following findings :- (a) Issue no. (iii) regarding bar of any law not pressed ? (b) Issue no. (iv) regarding bar of Specific Relief Act not pressed ? (c) Evidence does not prove that plaintiff Sarwan Kumar was son - 5 - of Bhadai Mistry and was inducted as a tenant in the house of Jaglal Mistry at the rate of Rs.75.00 per month. (d)It is proved that Sarwan Kumar (plaintiff) was son of Jaglal Mistry (defendant no.1) from his first wife and was residing in the suit house as a member of the joint family. (e) Ext. D ( deed of partition ) does not show as to which land fell in the share of Jaglal Mistry in partition amongst his brothers and no partition was proved by the defendants. (f) The deed of gift (Ext.D/1) shows that the land not gifted by Madhir Mistry to his three sons including Jaglal Mistry were gifted by Jaglal to his wife although he had no right to transfer the said land. (g) Jaglal Mistry executed the deed of gift with regard to joint family property in favour of his wife and hence Ext. D/1 cannot be held to be legal and valid ? (h) The suit property is joint family property and the plaintiff being son of Jaglal Mistry has a share in it and had unity of title and possession with the defendants. (i) Plaintiff Sarwan Kumar has got 1/5th share but the defendants are not ready for partition and hence the suit is maintainable and the plaintiff has cause of action. 9. Against the aforesaid judgment and decree of the trial court, all the defendants filed Title (Partition) Appeal No. 14 of 1994, in which the plaintiff-respondent appeared on being noticed and after considering the pleadings of the parties, the learned court of appeal below formulated the - 6 - following points for consideration in the appeal :- (i) Whether plaintiff, Sarwan Kumar is the son of Jaglal Mistry (defendant no.1)? (ii) Whether the deed of gift dated 03.05.1989 executed by Jaglal Mistry in favour of his wife Sushila Devi, defendant no.5 is illegal, void and not binding upon the plaintiff ? (iii) Whether there exists unity of title and possession between the plaintiff and defendants in respect of the suit properties ? (iv) Whether the plaintiff is entitled to get a decree for his 1/5th share over the suit properties? (v) Whether the suit is bad for non-joinder of parties? (vi) Whether the suit is hit by res judicata? 10. After considering the arguments of the parties and the evidence, both oral and documentary, produced by them, the learned District Judge, Jehanabad, vide his judgment and decree dated 10.05.1996 dismissed the title (partition) appeal on contest with cost subject to the only modification that the plaintiff was entitled to 1/7th share after arriving at the following findings :- (a) Plaintiff, Sarwan Kumar is the son of defendant no.1 Jaglal Mistry. (b) In view of the settled law that the co-parcener cannot gift away the entire properties of the family to any body without the consent of other co-parceners. (c) The deed of gift dated 03.05.1989 (Ext.9) executed by Jaglal Mistry (defendant no.1) in favour of his wife Sushila Devi (defendant no.5) is illegal and void specially when there is no - 7 - such averment by the defendants that the gift was for any legal necessity or was made after obtaining the consent or the authority of all the co-parceners . (d) In view of the fact that the point of non-joinder of the sister was not raised in the written statement and no such plea was taken in the suit, the suit was not barred for her non-joinder. (e) Lalti Devi, daughter of Jaglal Mistry will also be entitled to a share and hence the plaintiff and defendant nos. 1 to 5, along with Lalti Devi are entitled to 1/7th share. 11. Against the aforesaid judgments and decree of the learned courts below, the defendants filed the instant second appeal, which was admitted on 14.05.1999 on the basis of following substantial of law :- “Whether the sons of defendant no.1 Jaglal Mistry had right to claim share in the property which he had received from his father?” 12. When the instant second appeal was taken up for final hearing on 17.03.2009, learned counsel for the appellants submitted two additional substantial questions of law, which are as follows :- (i) Whether joint family property partitioned by sons after death of their father retained its character as joint family property or became separate property of each son? (ii) Whether Mitakshara joint family property having been partitioned by sons after the death of father, succession of the property of the son after his death will be governed by section 8 of Hindu Succession Act, 1956 or section 6 thereof ? - 8 - 13. On the aforesaid questions, learned counsel for the defendants- appellants argued that admittedly Jaglal Mistry got the suit properties in partition in the family during life time of father Madhir Mistry and also subsequent to his death and hence Jaglal Mistry (defendant no.1) had exclusive right and title over the said property and was fully entitled to execute the deed of gift dated 03.05.1989 (Ext.D/1) in favour of Sushila Devi (defendant no.5) and his children had no right, title, interest or share in the said properties. It was also claimed that even if Jaglal Mistry (defendant no.1) got the suit properties by inheritance after the death of his father Madhir Mistry in the year 1991, sons of Jaglal Mistry (defendant no.1) not being Class-I heirs of Madhir Mistry as per the Schedule of Hindu Succession Act, 1956 (hereinafter referred to as `the Act’ for the sake of brevity’ ) cannot inherit the said properties. 14. Learned counsel for the appellants further argued that the properties being self acquired properties of Madhir Mistri, his sons after his death would become tenants in common and not co-parceners in the sense of the old Hindu Law. In this connection, he relied upon a decision of the Hon’ble Apex Court in case of P. Periasami vs. P. Periathambi, reported in 1996 P.L.J.R. (SC) 67. He also referred to section 8 of the Act, according to which the property of a male Hindu dying inestate shall devolve according to the provisions of this Chapter upon the heirs, being the relative specified in Class-I of the Schedule and only if there is no heir of Class-I, then it would devolve upon other heirs including Class-II heirs, agnates, cognates etc. 15. Learned counsel for the appellants also submitted that the land partitioned and recorded in the name of each of the sons, loses character of joint family property and each of them had right to transfer his share in the land. He - 9 - further submitted that the plaintiff’s father left behind daughter also and hence section 6 of the Act had no application. In this regard he relied upon three decisions of the Hon’ble Apex Court in case of Bhanwar Singh vs. Puran, reported in A.I.R. 2008 S.C. 1490, (ii) in case of Yudhister vs. Ashok Kumar, reported in A.I.R.1987 S.C. 558 as well as (iii) in case of Commissioner of Wealth Tax, Kanpur vs. Chander Sen, reported in A.I.R.1986 S.C. 1753. 16. On the other hand, learned counsel for the plaintiff-respondent argued that admittedly Madhir Mistry had no daughter and in the year 1973 Madhir Mistry, his wife and three sons, namely, Jaglal, Sarju and Arjun were joint, whereas, the remaining two sons Nanhaku and Deolal had separated, which continued till 1985 when Dhanmatiya died, whereafter, the properties were partitioned by family arrangement between Madhir Mistry and his aforesaid three sons. It is also claimed that subsequently in the year 1991 Madhir Mistry also died while living jointly with Jaglal Mistry, Arjun and Sarju, but much before his death Jaglal Mistry (defendant no.1) gifted the entire land, which were acquired by his father Madhir Mistry including the share of others, to Sushila Devi (defendant no.5) by registered deed dated 03.05.1989 (Ext.D/1), which is, thus, clearly illegal and void and no title was acquired by defendant no.5 on its basis. He also argued that the appellants could not disprove by any material whatsoever the findings of the learned trial court that Jaglal Mistry had gifted to his wife land in excess of the land given to him by his father Madhir Mistry. It was also claimed that the deed of gift executed by defendant no.1 Jaglal Mistry having been proved to be illegal and void and the plaintiff having been proved to be the son of Jaglal Mistry (defendant no.1), the plaintiff in any manner - 10 - whatsoever will be entitled to a share in the suit properties. 17. After hearing the parties, this Court feels that all the aforesaid three substantial questions of law raised by the defendants-appellants are inter- related and hence they are taken up for consideration jointly. Both the learned courts below after considering the pleadings and evidence of the parties, relied upon the genealogical table provided by the plaintiff and also came to the conclusion that the plaintiff Sarwan Kumar was the son of defendant no.1 Jaglal Mistri. These aspects of the matter and the findings of the learned courts below have not been challenged by the defendants-appellants, including defendant no.1 himself in the instant second appeal and hence the said findings have attained finality. 18. So far the alleged deed of partition (Ext.D) said to have been executed between Madhir Mistry and his sons is concerned, it does not show any specific land given to Jaglal Mistry or to any other son of Madhir Mistry. Furthermore, the parties have failed to prove by any valid and reliable evidence that any partition by metes and bounds between Madhir Mistry and his sons had taken place or the said Madhir Mistry had transferred any of his self acquired land to his sons or to any of them. In the said circumstances, defendant no.1 Jaglal Mistry had no authority in law to transfer the said land or any part thereof to his wife Sushila Devi (defendant no.5) in the year 1989 by a registered deed of gift dated 03.05.1989 (Ext.D/1) in the life time of his father Madhir Mistry who admittedly died later in the year 1991. In the said proven facts and circumstances, it is quite apparent that the case laws relied upon by learned counsel for the appellants are not applicable to the instant case. 19. In the afore said circumstances, after the death of Madhir - 11 - Mistry in the year 1991 all his properties devolved upon his Class-I heirs, namely, his sons as per the provisions of the Act. It is well-proved that thereafter there was a partition among the sons of Madhir Mistry and defendant no.1 got the suit property which throughout remained in exclusive possession of defendant no.1 Jaglal Mistry as absolute owner thereof and his brothers or any one else did not raise any claim with respect thereto. Now it is not in dispute that the said Jaglal Mistry (defendant no.1) died on 11.02.2000 leaving behind a widow (defendant no.5) and four sons (plaintiff, defendant no.2, defendant no.3 and defendant no.4) as well as a daughter Lalti Devi, who was substituted in this second appeal in place of her father as appellant no.1 vide order dated 17.03.2009. Hence all of them inherited the suit properties as per the provisions of the Act, according to which each of them had 1/6th share in the suit properties, including the plaintiff. 20. In the said changed scenario, as per the proven/admitted facts and the legal position it is quite apparent that the final conclusion of the learned courts below that the plaintiff was son of defendant no.1 and was entitled to a share in the suit property has to be affirmed, although the basis of his entitlement to the share has changed. Hence this Court does not feel it necessary to remand the matter to the learned court below for considering the matter afresh with regard to the respective shares of the parties, as admittedly defendant no.1 Jaglal Mistry has died on 11.02.2000 leaving behind no other Class-I heir except the appellants and the respondent of this second appeal and also because such a remand will be an exercise in utter futility consuming several years of further litigations. 21. In the said circumstances, this Court finds that the appellants - 12 - have failed to substantiate the questions of law raised by them and, accordingly, this second appeal is disposed of affirming the judgments of the learned courts below with a modification that each of the parties to this second appeal including the plaintiff (respondent), defendant no. 2 (appellant no. 3), defendant no.3 (appellant no. 4), defendant no.4 (appellant no. 5), defendant no.5 (appellant no. 2) and Lalita Devi (substituted appellant no.1 of the instant second appeal ) would be entitled to 1/6th share each in the suit property. 22. However, in the facts and circumstances of this case, there will be no order as to costs. 23. Let a preliminary decree be prepared accordingly. 24. If any of the parties applies for initiating a proceeding of final decree, the office is directed to take necessary steps in that regard and refer the matter to an appropriate authority in accordance with law. Patna High Court April 15th , 2009 NAFR MPS/ ( S. N. Hussain, J. )