Case: Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo and Others

2. Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as Nagaruntari Estate, in the district of Palamau. The succession to the estate was governed by the rule of lineal primogeniture. Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.3. It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estate Act, 1876, on the application of Bhaiya Rudra Pratap Deo as per notification dated March 17, 1932 published in the Bihar Gazette dated March 23, 1932 and after liquidation of debt it was released from the operation of Chota Nagpur Encumbered Estates Act in October 1945. Eventually the Estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a notification dated November 5, 1951. Harihar Pratap Deo, who was the younger brother of Bhaiya Rudra Pratap Deo had died in a state of jointness with jointness with his brother Bhaiya Rudra Pratap Deo 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other stepson who was also died in 1937 unmarried. Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance) from Bhaiya Rudra Pratap Deo in 1950. Bhaiya Rudra Pratap Deo executed a deed of maintenance on April 14, 1952 in respect of eight villages in favour of Lalu Maheshanuj Pratap Deo. A dispute, however, arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under Section 144, CrPc. The proceedings were, however, later converted into proceedings under Section 145, CrPc which ended in favour of Lalu Maheshanuj Pratap Deo on July 4, 1955. Bhaiya Rudra Pratap Deo feelings aggrieved by the order filed suit which has given rise to the present appeals and which was later on numbered as suit No. 16 of 1955 against Lalu Maheshanuj Pratap Deo alias Nila Bacha in respect of the agricultural plots of Village Sigsigi and the grains in the custody and control of the police, Bisrampur, District Palamau.4. The case of the plaintiff is as follows : After the vesting of the Estate in the State of Bihar and the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra but the plaintiff declined to do so as Section 12-A of the Chota Nagpur Encumbered Act and the provisions of the Bihar Land Reforms Act stood as a bar. The defendant, however, implored and wanted to take a chance and try his luck. On the beseechment of the defendant the plaintiff allowed him six villages only, namely, Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra subject to acceptance of State of Bihar. There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant. A formal unstamped and unregistered deed of khorposh (maintenance) was no doubt created in respect of only six villages on April 14, 1952 subject to the approval of the authorities. The defendant, however, in collusion with the plaintiff employees and ex-employees and without the knowledge and information of the plaintiff managed to use the plaintiffs signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in Khorposh grant and included these two villages in the formal deed dated 14, 1952 in collusion with the typist and designing persons by perpetrating fraud of the plaintiff.5. When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest before the authorities and the authorities refused to accept the plea to khorposh and they ordered the villages to be included in the compensation list of the plaintiff and the rent of all the sirjot lands was fixed in favour of then plaintiff. Thus, no khorposh grant remains even in respect of the six villages and such grants, if any, are void under Section 12-A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act. Even assuming for the sake of argument that the two village Sisigi and Patihari were included in the deed dated April 14, 1952, the transfer is void ab initio and no title accrued to the defendant on that basis.6. At the time proceedings under Section 145, CrPc paddy crops grown by the plaintiff were standing on the petition of the plaintiff the same were harvested by the police. Subsequent cultivation was also done through the police, Bisrampur and the plaintiff is entitled to all the grains in the custody of the police.7. On these allegations the plaintiff sought a declaration that the land in dispute, detailed in Schedule A, situated in village Sigsigi was the Khasjot land of the plaintiff, that the defendant had no concern therewith and that he (the plaintiff) was entitled to the grain or the value thereof as detailed in Schedule B. The plaintiff also claimed a relief for possession over the disputed plots and the grain or the value thereof. A relief for mesne profits to be ascertained in subsequent proceedings was also claimed.8. Bhaiya Rudra Pratap Deo, the plaintiff, died during the pendency of the suit and his two sons four widows got themselves substituted in his place. His eldest son, Bhaiya Ramanuj Pratap Deo filed a petition before the trial court for substitution in place of his deceased father alleging that the Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture under which the eldest son alone alone is entitled to succeed his father. His prayer was allowed. Subsequently the second son Bhaiya Rudra Pratap Deo and his widows filed a petition for being substituted. The sub-Judge imploded all these persons provisionally as plaintiffs ordering to strike out an issue as to which of them was or were entitled to fruits of the litigation, if eventually the court decide the suit as against the defendant. The conduct of the suit was given to plaintiff 1 under the provisions of Rule 11, Order 1,CPC9. The suit was contested by the defendant on the following grounds amongst others : The Nagaruntari Estate was never an impartible estate governed by the rule of lineal primogeniture but in its origin it was non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of the revenue paying estate and thus it became an ordinary joint family property partible amongst the members. His father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four years old an he was living under the guardianship of his uncle. He was made to carry an impression, due to propaganda made by his uncle Bhaiya Rudra Pratap Deo that Nagarunatari Estate was an impartiable estate and being under this wrong impression he subsequently filed an application against his uncle in 1950 claiming khorposh grant of 22 villages including village Sigsigi from out Nagaruntari Estate and also partition of the self-acquired property of his grandfather. That application was, however, rejected. The Nagaruntari Estate later on vested in the State of Bihar under the Bihar Land Reforms Act. Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in respect of eight villages including Sigsigi and got it typed in his house and sent it to him with a direction to take possession of the eight villages and accordingly he took possession of the same. The defendant denied that he had fraudulently got was illegal. The defendant claimed that he was co-sharer with the plaintiff and was entitled to remain in possession of all the eight villages covered by the khorposh deed till partition was made.10. The subordinate Judge held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the defendant in khorposh eight villages including Village Sigsigi but the defendant did not acquire any interest in the said land on the basis of the khorposh deed as the same was against the provisions of Section 12-A of the Chota Nagpur Encumbered Estate Act and the Chota Nagpur Tenancy Act; that Nagaruntari Encumbered Estate Act and the Chota Nagpur Tenancy Act; that Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture but it ceased to be so after the enforcement ofthe Hindu Succession Act, 1956 in June 1956 and since Bhaiya Rudra Pratap Deo died after this Act came into force the succession to the estate would be governed by survivorship as contemplated by Section 6 of the Hindu Succession Act. As such the plaintiffs, as well as the defendant would succeed. The defendant is thus entitled to remain in possession of the said property as one of the co-owners and the plaintiffs could not claim an exclusive khas possession till the matter is decided in a partition suit. On these findings he dismissed the suit.11. Feeling aggrieved by the decision heirs and legal representatives of Bhaiya Rudra Pratap Deo, the deceased plaintiff, preferred an appeal. On appeal the District Judge confirmed the findings of the trial court. He, however, held that the grant of khorposh by Rudra Pratap Deo after the release of the estate from the management of the Chota Nagpur Encumbered Estates Act was void under Section 12-A of the Act as the khorposh grant was not made with the sanction of the Commissioner and also because the possession of the ex-proprietor with respect to the Bakasht land became that of raiyat under the State of Bihar and the raiyat right was not transferable without a registered document. Thus, the possession of the defendant was on the basis of a void document. The learned Judge further held that the document of khorposh being unregistered was not admissible in evidence but it could be used for a collateral purpose of explaining the nature of possession; that the defendant being a minor member of the family was put in possession of the property covered by it by the holder of the estate and his possession was as khorposh-holder (maintenance holder) and not as a trespasser and he was not liable to be evicted. The Nagaruntari Estate was found to be an impartible estate where succession was governed by the rule of lineal primogeniture. But after the death of Bhaiya Rudra Pratap Deo Section 6 of Hindu Succession Act became applicable and the devolution of the property would not be governed by the rule of lineal primogeniture but by the ordinary rule of succession as provided under the Hindu Succession Act. It was also held that Rudra Pratap had died in a state of jointness with the defendant and after Hindu Succession Act came into force the Nagaruntari Estate became an ordinary joint family property of the parties and that the possession of the defendant was as a co-sharer. On these findings the appeal filed by the plaintiffs was dismissed by the District Judge.12. Undaunted, the plaintiffs preferred a second appeal in the High Court which was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mesne profits for their share, that is, one-half in addition to the entire mesne profits to which Rudra Pratap was entitled in his lifetime. Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.

Reasoning:
22. As regards the second reason, the arguments is based on Section 17 read Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration Section 49 of the Registration Act provides that no document required by Section 17 or by any provisions ofthe Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, (b) * * *, (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of Section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property. Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.23. Admittedly the defendant was a member of a joint Hindu family, Even in an impartible estate was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder. His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as aof Bombay v. Municipal Corporation of the City of Bombay [AIR 1951 SC 469   : 1952 SCR 43   : 1951 SCJIn the instant case the defendant being a member of joint Hindu family was entitled to maintenance from the impartible estate holder. The impartible estate holder executed a khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant-appellant. This being the position in the instant case, the case cited above is not of much help to the plaintiff-respondent. In that case the sole basis of the title itself was invalid. A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed. The execution of the document is not denied by the plaintiff. All that he says is that Village Sigsigi was not included in the deed.36. We find considerable force in the contention raised on behalf of the defendant-appellant that the High Court has erred in passing the decree for possession and mesne profits against the defendant. The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.37. The second contention that disputed estate was a partible estate has been raise only to be repelled. The overwhelming evidence on the record leaves no room for the doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957.