Case: Shiromani &amp; Ors Vs. Hem Kumar &amp; Ors

2. Respondents Nos. 1 and 3, Hemkumar and Dinmani and appellant No. 1 Siromani are the sons of late Dharam Singh Agharia. Appellant No. 2 Mst. Subhagwati is the second wife of Dharam Singh and the mother of appellant No. 10 Mst. Jampalhin, the mother of respondents l and 3 died before Dharam Singh married appellant No 2. The relationship of the parties will appear from the following pedigree :3. It is not disputed that the parties are governed by the Benaras School of Hindu Law. It appears that Dharam Singh was murdered in 1940 and his son Hemkumar was involved as an accused but he was acquitted in that case. Mst. Subhagwati, appellant No. 2 appeared as a prosecution witness in the murder case and deposed against Hemkumar. At the time of his death, Dharam Singh had left 102.28 acres of ryoti land in village Tilgi and 16.56 acres of ryoti land at village Supaka and also some house properties Appellants 1 and 2 instituted C. S. No 43-A of 1956 in the court of the Civil Judge, First Class, Raigarh claiming that they were entitled to 1/4th share each of Dharam Singhs estate and there should be Partition by metes and bounds of the joint family properties. They challenged the validity of Ex D-4 dated December 27, 1943. It was alleged that Mst. Subhagwati was compelled by Hemkumar under threat of violence to execute the deed Ex. D-4. It was said that the deed Ex. D-4 was prejudicial to Siromani who was a minor at that time because he was given less than the share to which he was entitled and his mother Mst. Subhagwati was also not given her due share of joint family properties. The appellants accordingly prayed that there should be a fresh partition by metes and bounds of the joint family properties and they should be given 1/4th share each there in. The suit was resisted by the respondents on the ground that the parties were bound by the deed of partition, Ex. D-4 and there was no ground for reopening the partition which had already taken place. The trial judge found that the partition deed, Ex. D-4 dated December 27, 1943 was not executed by Mst. Subhagwati under undue influence and that document was acted upon. It was further held by the trial judge that though the partition deed did not ret serve any share to Mst. Subhagwati. the appellants were not entitled to reopen the partition because Mst. Suhhagwati was not entitled to a share and Hemkumar was entitled to an increased share on account of the custom of "Jethunsi". The appellants took the matter in appeal to the District Judge of Raigarh but the appeal was dismissed. The appellants preferred a second appeal to the High Court of Madhya Pradesh which dismissed the second appeal. The High Court took the view that the deed, Ex. D-4 was neither an award no was it a document effecting partition of immovable properties of the value of more than Rs. 100. It was held that Ex D-4 was admissible in evidence in order to show that there was separation of status between the coparceners. The High Court also rejected the plea of the appellants that the partition should he reopened because it did not give a share to Mst. Subhagwati. According to the Benares School of Hindu Law, Mst. Subhagwati was entitled to a share in the joint family properties equal to that of a son but the High Court found that there was a clear acquiescence on the part of Mst. Subhagwati when she executed the deed, Ex. D-4 and it must be taken that she relinquished her share in favour of the other coparceners. On the question of "Jethansi" claimed by Hemkumar, the High Court found that the evidence established the custom of "Jethansi" whereby the elder son was given a greater share in the property of his father. On the basis of these findings the High Court dismissed the second appeal.

Reasoning: In our opinion, the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenery and there was no partition of the properties by metes and bounds.We proceed to consider the next question arising in this appeal namely, whether Mst. Subhagwati was entitled to a share in the joint family properties equal to that of a son and whether properties equal to that of a son and whether the alleged partition effected by Ex. D-4 was invalid because no such share was allotted to her. It is not disputed on behalf of the respondents that according to the Mitashara Law of the Benares School a wife is entitled, on partition between her sons, to a share equal to that of a son. But the contention put forward on behalf of the respondents is that by signing the document, Ex. D-4 Mst, Subhagwati acquiesced in the division of the properties between her sons without claiming any share for herself and it must counsequently be taken that Mst. Subhagwati relinquished her share. It was pointed out that Ex. D-4 was executed on December 27, 1943 and for a period of 11 years Mst. Subhagwati did not take any action to impeach that document. We are unable to accept the argument put forward on behalf of the respondents as correct. There is no issue in the trial court regarding the alleged acquiescence of Mst. Subhagwati nor was it pleaded on behalf of the respondents that there was an agreement by which Mst. Subhagwati gave up her share in favour of the other coparceners. On the contrary, it is alleged in Para 9 of the written statement that Subhagwati was not entitled to any be effected by Ex. D-4 was not prejudicial to the interest of plaintiff No. 1. To put it differently, there is not pleading on the part of respondents of acquiescence by Mst. Subhagwati and there is no issue on the question of acquiescence. We are accordingly unable to accept the argument of the respondents that there was acquiescence on the part of Mst. Subhagwati or that she relinquished her share in favour of the other coparceners and the finding of the High Court on this point is erroneous.On behalf of the respondents, however, reliance was placed upon the special custom of "Jethansi" said to be prevalent in the caste of Agharias to which the parties belong. Reference was made to the evidence of D.W. 4, Baratram, D. W. 5, Sitaram, D. W. 6, Yalobra and D. W. 7, Khewlal to show that there was such a custom in the caste whereby the eldest son was given a greater share in the property of the father. Mr. Sarjoo Prasad took us through the evidence of these witnesses but we are not satisfied on their evidence that the custom pleaded for has been established. It is well established that a custom must be proved to he ancient, certain and reasonable if it is to be recognised and acted upon by Courts of law; and being in derogation of the general rules of law the custom must be construedare accordingly of the opinion that the custom of Jethansi alleged on behalf of the respondents has not been established by proper evidence and the finding of the High Court is vitated because it is not supported by proper evidence. We accordingly reject the argument of the respondents that Hemkumar was entitled to a larger share of the joint family properties on the basis of the alleged custom of Jethansi in his caste.8. On behalf of the respondents reference was made to the evidence of D. W. 1 Dinamoni and D. W. 2 Dindayal that there was an actual partition of joint family properties not on December 27, 1943 when Ex. D-4 was executed but about two months later and specific allotments were made to each of the coparceners. There is, however, no pleading in the written statement on behalf of the respondents that apart from the document, Ex. D-4 there was a partition of the joint family properties. We are satisfied in this case, upon examination of the evidence that the intention of the parties was that document Ex. D-4 should he the sole evidence of partition and since we have held that Ex. D-4 is not admissible in evidence on account of non-registration to establish when the property was so partitioned, it is manifest that no oral evidence is admissible to prove any subsequent partition having regard to the provisions of Section 91 of the Evidence Act. It is clear therefore that the appellants are entitled to a preliminary decree for partition of joint family properties.