Patna High Court FA No.764 of 1977 dt.17-04-2012 1/37 IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.764 of 1977 (Against the judgment and decree dated 30.07.1977 passed by Sri Raja Ram Singh, 1st Additional Sub Judge, Begusarai in Title Suit No.45 of 1967/72 of 1973). =================================================== Bachhi Devi & Ors .... .... Defendants-Appellants Versus Madho Singh & Ors .... .... Plaintiffs-Respondents =================================================== Appearance : For the Appellant/s : Mr. S.S. Dvivedi, Sr. Advocate Mr. Binod Kumar Singh, Advocate with him Mr. Chinta Haran Singh, Advocate Mr. Madan Pd.Singh-2, Advocate For the Respondent/s : Mr. Chhotelal Narayan Singh, Advocate Mr. Pramod Kumar, Advocate Mr. Ravi Bhardwaj, Advocate Mr. Surendra Kumar, Advocate =================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO CAV JUDGMENT Date: 17-04-2012 Mungeshwar Sahoo, J. The defendants have filed the present First Appeal against the judgment and decree dated 30.07.1977 passed by Sri Raja Ram Singh, the learned 1st Additional Subordinate Judge, Begusarai in Title Suit No.45 of 1967/72 of 1973 decreeing the plaintiff-respondent’s suit to the extent of half Patna High Court FA No.764 of 1977 dt.17-04-2012 2/37 share on part suit property. (2) The original plaintiff-respondent, Banarsi Singh with his two sons filed Title Partition Suit No.45 of 1967 alleging that one Babu Horil Singh was the common ancestor of the parties. He had three sons namely, Harakh Singh, Ritlal Singh and Rangoo Singh. The line of Rangoo Singh extinct. The plaintiffs are the descedants of Harakh Singh whereas the defendants are the descendents of Ritlal Singh. The plaintiff has given full genealogy in the plaint according to which Horil Singh had three sons namely, Harakh Singh, Ritlal Singh and Rangoo Singh. Harakh Singh had three sons namely Chaman Singh, Matuki Singh and Maula Singh. The son of Chaman Singh namely Banarsi Singh is the original plaintiff no.1. His two sons are plaintiff nos.2 and 3. Ritlal Singh had three sons namely Gopi Singh, Kali Singh and Sia Prasad Singh. Gopi Singh had two sons namely Dwarika Singh and Chano Singh. Dwarika Singh had two sons namely Raghubansh Singh and Yadubansh Singh who are defendant nos.4 and 5. Raghubansh Singh had one son, Narayan Singh, defendant no.5 whereas the three sons of Yadubansh Singh are defendant nos.7 to 9. The three sons of Chano Singh @ Chandrashekhar Prasad Singh are defendant nos.10 to 12 namely Chhote Singh, Bal Singh and Bhirgu Singh. The sons of defendant no.10 are defendant nos.13, 14 and 15 whereas sons of defendant no.11 are defendant nos.16 and 17. The only son of defendant no.12 is defendant no.18. (3) The second son of Ritlal Singh, i.e., Kali Singh had two sons namely Udit Narayan Singh and Shankar Sharan Prasad Singh. Udit Narayan Singh had three sons, Lallan Singh, Madan Singh, Ranjan Singh. Lallan Singh is defendant no.19 and his only son Birja Singh is defendant Patna High Court FA No.764 of 1977 dt.17-04-2012 3/37 no.22. Madan Singh is defendant no.20 and his only son Kishore Singh is defendant no.28. The three sons of Shankar Sharan Prasad Singh are defendant nos.23, 24 and 25 whereas Shankar Sharan Prasad Singh himself is defendant no.1. Sia Prasad Singh had two sons Pratap Singh who is defendant no.2 and his three sons are defendant nos.29, 30 and 31. The only son of defendant no.29 is Narayan who is defendant no.32. The three sons of defendant no.30 namely Haldhar Singh are defendant nos.33, 34 and 35. The second son of Sia Prasad Singh namely Gangotri Singh is defendant no.3 whereas his two sons Nand Kumar Singh and Brij Kumar Singh are defendant nos.26 and 27. The third son of Horil Singh namely Rangoo Singh had two sons Bhatu Singh and Bhoop Singh. Bhatu Singh died leaving behind widow, Jhalo @ Kherahia Wali. Bhoop Singh died issueless. (4) According to the plaintiffs, the family of the parties had large area of joint family properties in the nature of Raiyati kaymi lands and Milkiyat interest and different taujis along with Bakast lands. All the members of joint family were in joint possession of the same and Babu Ritlal Singh was the karta of the family. Many properties were acquired by the members of the joint family in the name of one or the other family members but mostly in the name of karta of the family, i.e., Babu Ritlal Singh out of the income and savings of the joint family properties. Babu Rangoo Singh died long ago in jointness with his brothers leaving behind two sons namely, Bhatu Singh and Bhoop singh. Both of them died issueless. Bhatu Singh left behind widow, Jhalo who remained joint. Harakh Singh had three sons namely, Chaman Singh, Matuki Singh and Maula Singh. The original plaintiff, Banarsi Singh is the son of Chaman Singh. The other two sons of Patna High Court FA No.764 of 1977 dt.17-04-2012 4/37 Harakh Singh died issueless in the state of jointness with Chaman Singh. Babu Chaman Singh separated himself from sons of Babu Ritlal Singh but the entire joint family properties remained in joint possession of the parties. Widow of Bhatu Singh namely, Masomat Jhalo was known as Kherahia Wali according to the name of her village. (5) The further case of the plaintiffs is that for the sake of convenience of cultivation without reference to shares, the sharers were cultivating some portion of land under partition separately. After vesting the lands which were in possession of parties became Raiyati kaymi lands. Although, Babu Chaman Singh, father of plaintiff had separated, the management of the properties continued to be done by Gopi Singh and Babu Kali Singh, sons of Ritlal Singh on behalf of the entire family of the parties. The entire land of village Gangaprasad which is substantial area is subjected to annual submersion and erosion by the river Gangas but for few years, it is being cultivated. The further case of the plaintiff is that the defendants have also separated themselves and the plaintiffs feel difficulty in joint possession and cultivation of the lands. Six bighas of land which were given to Masomat Jhalo for her maintenance has reverted back to the parties after her death is also liable for partition. The separate schedules have been given describing in details the properties with the plaint. The plaintiffs have got half share in the suit property mentioned in detail in the schedules. (6) The defendant nos.2,3,26,27,29,30 and 31 filed a joint separate contesting written statement. Their case in short is that there is no unity of title and possession between the parties. After the death of Horil Singh, Harakh Singh, the eldest member of the family became the karta long Patna High Court FA No.764 of 1977 dt.17-04-2012 5/37 long ago much before the cadastral survey, he completely separated from his brothers, Ritlal singh and Rangoo Singh in mess, residence and properties and partitioned all the properties including the immovable properties by metes and bounds. The other two brothers, Ritlal Singh and Rangoo Singh remained joint. Bhatu Singh and Bhoop Singh predeceased their father, Rangoo Singh in the state of jointness. Thereafter in 1900(1307 Fasli), Rangoo Singh also died in the state of jointness with Ritlal Singh and his sons. The three brothers had only a very meager joint family property. In the partition, Harakh Singh got 1/3rd share and came in possession thereof and the remaining 2/3rd share came in possession of Ritlal Singh and Rangoo Singh who continued in possession thereof. After the separation of Harakh Singh, the two brothers Ritlal Singh and Rangoo Singh acquired extensive properties by dint of their hard labour, trade and even after death of Ritlal Singh and Rangoo Singh, the sons of Ritlal Singh acquired extensive properties with which the branch of Harakh Singh had no concern. The plaintiff who is grandson of Harakh Singh, knowing fully the above facts, has filed this mischievous false suit with dishonest motive to harass the defendants. (7) Regarding the genealogy, it is stated that Rangoo Singh had one daughter namely, Mantorano Devi and predeceased sons and daughters. A separate genealogy table has been given at the foot of the written statement. No properties were acquired when the three brothers were joint. There was no saving in the family as the income was very scanty. After separation of Harakh Singh, gradually the properties have been acquired either by Ritlal Singh or Rangoo Singh or by sons of Ritlal Singh. Harakh Singh died in the year 1899(1306 Fasli) in the state of jointness with his sons and was separated Patna High Court FA No.764 of 1977 dt.17-04-2012 6/37 from his two brothers. Rangoo Singh died in jointness with Ritlal Singh in the year 1900. His sons had predeceased him. On the death of Rangoo Singh, his interest devolved on Ritlal Singh by rule of survivorship. Jhalo was the daughter of Bhatu Singh and the name of widow of Bhatu was Kherahia Wali @ Murchha Devi. In the year 1932, when there was partition between the descendents of Babu Ritlal Singh in Title Partition Suit No.58 of 1929 in compromise, 5 bighas 19 katthas and 18 dhurs was given for maintenance to Masomat Murchha Devi. Subsequently, Chaman and Matuki separated from one another and Chaman Singh also died in the year 1934 and Matuki Singh died in the year 1941 in the state of separation from each other. Matuki Singh died leaving behind two daughters namely, Masomat Sohaga and Masomat Baso. Baso was married with Rambadan Singh of village Bikram. Sohago has 4 sons namely, Ramashish Singh, Ramchandra Singh, Ram Babu Singh and Phulena Singh. Baso became widow without any issue. On the death of Matuki, his heirs inherited his property and they are in peaceful possession thereof. (8) Since Harakh Singh himself had completely separated from Ritlal and Rangoo long long ago and, therefore, there was no joint family and as such, the question of Chaman Singh separating from sons of Ritlal Singh does not arise. The plaintiffs falsely alleged that Chaman Singh separated from sons of Ritlal Singh and the joint family property remained joint. There had been separation and partition long before cadastral survey between Harakh Singh on the one hand and Ritlal Singh and Rangoo Singh jointly on the other hand. After this partition, there had been self-acquisition made by joint family of Ritlal and Rangoo. In the cadastral survey, lands of Harakh Patna High Court FA No.764 of 1977 dt.17-04-2012 7/37 Singh were separately recorded in the name of his sons, Chaman Singh and Matuki Singh. The ancestral properties as well as subsequent acquisition were separately recorded in the name of Ritlal Singh and widow of Rangoo Singh namely Budhano Kuer. (9) After separation and partition, Harakh Sigh begun to take loans from various persons including Ritlal Singh and Rangoo Singh. After his death, even Chaman Singh and Matuki Singh also took loan from Ritlal Singh and sons of Ritlal Singh. After vesting, the properties have been recorded in the name of the defendants and there was no Bakast land owned and possessed by the plaintiffs at the time of vesting of zamindari as by that time, the plaintiffs have sold all their lands. After separation and partition, Harakh Singh became karta of his family and on his death, his sons were looking after the affairs and management of their own joint family properties. Subsequently, they also separated from each other. Gopi Singh and Kali Singh, sons of Ritlal Singh were never the karta of joint family nor they ever managed the property. Gopi Singh has predeceased his father, Ritlal Singh. (10) Regarding the lands of Gangaprasad village is concerned, it is stated that the plaintiff’s ancestor had very small share in that Mauja. Chaman Singh and Matuki Singh had orally sold the said lands to the ancestor of the defendants and put them in possession over the same. After the death of ancestors, the defendants are coming in peaceful cultivation of the same. There were more than 100 co-sharers in the said village and unless all of them are made parties, the partition suit is liable to be dismissed for non-joinder of necessary parties. The further case is that the statement of the plaintiff to the effect that the defendants are separate amongst themselves is correct. There Patna High Court FA No.764 of 1977 dt.17-04-2012 8/37 was Title Partition Suit No.58 of 1929 which was filed by Chandrashekhar Prasad Singh, one of the sons of Gopi Singh. By a compromise decree dated 21.02.1932, partition was affected between the members of the joint family of branch of Ritlal Singh. In the said compromise, 2 annas 8 pies share was allotted to the plaintiffs. Dwarika Prasad Singh and his sons got 2 annas 8 pies. Kali Singh, son of Ritlal Singh and his sons got 5 annas 4 pies. Sia Prasad Singh, son of Ritlal Singh and his sons got 5 annas 4 pies. All these properties have been falsely and intentionally and dishonestly included describing the same as joint family property. Subsequently, there had already been further partition, Pratap Narayan Singh, son of Sia Prasad Singh in the one hand and Gangoti Prasad Singh and his sons on the other hand. (11) The further case of the defendants is that after partition, Harakh Singh and his sons incurred loans for meeting their necessity and they could not repay the loans so they sold their properties from time to time to the ancestors of these defendants jointly after survey. A time came when they were left with no property and were on the point of starvation. Therefore, out of sympathy, Ritlal Singh gave 8 bighas 18 katthas 15 dhurs of land of plot no.3061 part of plot no.3081, plot nos.5, 10, 11 and 23 to Chaman Singh and Matuki Singh, ancestor of the plaintiffs for their maintenance without any right of alienation. On the extinct of line of Harakh Singh, the property was to revert back to the branch of Ritlal Singh. The plaintiffs are enjoying the said properties till today. In the compromise, in Title Partition Suit No.58 of 1929, the above fact has been mentioned. After death of Kherahia Wali, the properties given to her for maintenance reverted to the family of Ritlal Singh as on the same condition it was given in maintenance. No land described in Patna High Court FA No.764 of 1977 dt.17-04-2012 9/37 schedule is joint family property. Plot no.42, 169, 262, 29/1286, 179 and 2 bighas 11 katthas 5 dhurs in plot no.35 and schedule no.6, plot no.46 of schedule no.47, schedule no.8 except plot no.2 are the lands belonging to the strangers. One of the suit properties have already been sold long long ago by the different defendants and their ancestors also and the purchasers are in possession thereof. The sold properties are described in schedule 1 being plot no.4071, part of plot no.3204 of schedule 3, part of plot no.35, 1 bigha 1 kattha 10 dhurs in schedule 6. Plot no.23 belongs to the plaintiffs exclusively which he has settled with Kamali Singh and Ram Kripal Singh in 1950-1952 which has been given in schedule 4 of the plaint. Lands of khata no.282 mentioned in schedule 9 are possessed by these defendants along with more than 100 co-sharers and plaintiff had no interest. The suit has been filed with dishonest intention. The ancestor of the plaintiff gradually sold their various lands orally to the ancestor of the defendants about 60 years ago in several installments and the defendants are in possession thereof. The said oral sales involved very small amounts of consideration money always much below Rs.100. In written statement, further very minute details have been given as to the recording of the names of the parties with respect to each plot. These facts are admitted facts and, therefore, not necessary for full description. The main defence has been stated above. (12) The other defendants appeared and they adopted the written statement filed by the above defendants. It appears that subsequently by amendment, many other properties were added in separate schedules and therefore, the concerning defendants filed their additional written statement regarding the amendment claiming that in fact, the properties are their Patna High Court FA No.764 of 1977 dt.17-04-2012 10/37 properties which were allotted to them in partition. (13) 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 any right or cause of action to sue? III. Is the suit barred by limitation? IV. Is the suit barred by law of estoppel, waiver and acquiescence? V. Is the suit under valued and court fee paid in sufficient? VI. Is the suit bad for the defect of the parties? VII. Did Harakh Singh separate and did his other two brothers Ritlal Singh and Rangoo Singh remain joint? VIII. Is the story oral purchase as set up by the defendants, correct? IX. Did Harakh Singh grandfather of Plaintiff No.1 completely separated from the ancestors of the defendants? X. Are the plaintiffs entitled to get a decree for partition as prayed for? XI. To what other relief or reliefs, if any, are the plaintiffs entitled to? (14) After trial, the learned court below came to the conclusion that since the defendants alleged that there had been partition between Harakh Singh in one hand and Ritlal Singh and Rangoo Singh on the other hand, the onus is on the defendant to prove this fact but the defendants failed to prove the partition alleged by them. The learned court below also came to the conclusion that the defendants failed to prove oral sale. The Partition Suit No.58 of 1929 will not affect the right and title of the plaintiffs as the ancestors of the plaintiffs were not made party. The defendants failed to prove the self-acquisition of the properties by Ritlal and his sons out of Patna High Court FA No.764 of 1977 dt.17-04-2012 11/37 their own income. The separate mess, residence, cultivation of land, dealings of properties by the parties is not conclusive proof of partition. The defendants failed to prove the time of partition and year of partition. The presumption of jointness between the brothers is stronger and the allegation made by the defendants is that Harakh Singh separated long long ago prior to cadastral survey. Therefore, the burden was on the defendants to revert this presumption but failed to do so. On these findings, the learned court below came to the conclusion that there is unity of title and possession between the parties and since Rangoo Singh died, his properties devolved on Harakh Singh and Ritlal Singh, the plaintiffs have got half share in the properties. However, the court below found that some of the properties mentioned in the schedule of the plaint are properties of the strangers or the purchasers are in possession thereof and, therefore, excluded from partition and thus decreed the plaintiff’s suit in part for some properties. (15) The learned senior counsel, Mr. S.S. Dvivedi appearing on behalf of the appellants submitted that the original owner of the ancestral properties was Horil Singh. The plaintiff is the 4th generation whereas some defendants are 5th generation and some are 6th generation. No doubt, there is presumption of jointness to the effect that every Hindu family is joint in food, worship and estate till the proof of division but in the present case, the suit has been filed for partition by the plaintiff who himself was 4th generation from the original founder. In such circumstances, the presumption of jointness is nil in the present case. Moreover, the plaintiff himself in the plaint admitted the fact that his father separated in mess and cultivation for convenience. Therefore, the learned court below has wrongly on the basis of presumption Patna High Court FA No.764 of 1977 dt.17-04-2012 12/37 only decreed the plaintiff’s suit. There are overwhelming evidences on record to show that prior to cadastral survey, Harakh Singh had separated himself in all respects and, therefore, the properties were recorded separately in the name of his sons in the cadastral survey record of rights in the year 1902. After more than 6 decades, the plaintiffs are now claiming that there had been no partition alleged by the defendants. There are also inter se transactions. The plaintiffs themselves in the plaint admitted that the defendants also separated and there are inter se transaction but then the learned court below without considering the legal position and the settled proposition of law laid down by the Apex Court as well as by this court held that there was no partition long long ago prior to cadastral survey and, therefore, there is unity and title and possession between the parties and decreed the suit. (16) The learned counsel further submitted that admittedly Harakh Singh was the eldest brother and therefore, during lifetime of Harakh Singh, Ritlal could not have been the karta of the family but wrongly the plaintiff’s case has been relied upon and it is held that properties have been acquired by the karta in his name. The learned court below also wrongly not relied upon the partition decree passed in Title Partition Suit No.58 of 1929 which was between the sons of Ritlal Singh. When there was separation and partition between the sons of Ritlal, there cannot be the case that the sons of Horil Singh were joint. The learned court below did not consider the inter se transaction and the cumulative effect of separate residence, separate cultivation, separate dealings, separate acquisition and inter se transaction for more than 6 decades. According to the learned counsel, the learned court below has approached the case in wrong angle. On these grounds, the learned Patna High Court FA No.764 of 1977 dt.17-04-2012 13/37 counsel submitted that the impugned judgment and decrees are liable to be set aside and the plaintiff’s suit for partition is liable to be dismissed with cost. (17) On the contrary, the learned counsel, Mr. Chhotelal Narayan Singh appearing on behalf of the respondents submitted that there is no illegality in the impugned judgment and decree. According to the learned counsel, the Hindu family is presumed to be in joint. The defendants alleged that there had been partition between the parties, i.e., Harakh Singh separated prior to cadastral survey, the other two brothers Ritlal and Rangoo remained joint. So far this case is concerned, it is for the defendant to prove that Harakh Singh separated. The only case of the plaintiff is that Harakh Singh also remained joint with the two brothers. In such circumstances, the learned court below has rightly decreed the plaintiff-respondent’s suit for partition. Since Ritlal Singh was educated person and clever man, he was managing the property and was the karta. No doubt, the plaintiffs have stated that Chaman Singh was separated from the sons of Ritlal Singh but the said separation was for the convenience. In spite of the said separation, the property was being managed by the sons of Ritlal Singh namely, Kali Singh who was karta. Since there was large extent of property and all the properties acquired in the name of karta, Ritlal Singh out of the income of joint family property will be presumed to be the joint family property and the onus will be on the defendants to prove that they acquired the property without the aid of joint family fund. The Title Partition Suit No.58 of 1929 was filed by one of the sons of Ritlal Singh and in that case, the branch of Harakh Singh was not made party and moreover, there was no final decree in the said suit. In such circumstances, the learned court below has rightly held that it will not affect Patna High Court FA No.764 of 1977 dt.17-04-2012 14/37 the right of the plaintiffs. The plaintiffs have got no property whereas the defendants are in possession of large extent of property which shows their dishonest intention. In the evidence, it has been admitted that Ritlal and his sons