Amulya Charan Maity vs Satyeswar Maity

P.N. Mookerjee, J.—This appeal arises out of a suit for partition. The contesting Defendants are the Appellants before us and there is a cross-objection by the Plaintiffs in respect of some of the disputed properties.

The suit was filed on January 11, 1954. The original plaint included four schedules of properties ka, kha, ga and gha,. Thereafter, by a petition for amendment of the plaint, filed on December 6, 1954, and allowed by the order of the trial Court on January 28, 1965, two other schedules were included in the plaint, namely, una and cha.

With regard to una, the Plaintiffs'' case was that this also comprised joint properties, which were left out initially by mistake, or through ignorance, and with regard to the other added schedule, namely, cha, the Plaintiffs'' case was that they were their (Plaintiffs'') separate and exclusive properties but, as the Defendants had taken objection on the ground that they also were joint properties of the parties, the same were included in the suit for the Court''s decision.

The principal defence to the suit was an alleged previous partition, which, according to the contesting Defendants, barred the present suit. For proving this previous partition, the Defendants relied on a document (Ext. E), dated March 3, 1920, which purported to be an award, making partition between the parties, a partition to which the parties, according to the Defendants, signified their consent and acceptance.

The Defendants also relied on a kobala (Ext. A. 13) which, according to them, was taken by the Plaintiff No. 1 from some of the contesting Defendants with a clear acknowledgment or admission of the above partition of 1920, this kobala being dated October 31, 1940.

The Plaintiffs denied the aforesaid previous partition, as alleged by the Defendants, and contended that Ext. E was not a genuine document and, to the same, they or their predecessors were never parties and never consented and it was not binding upon them. With regard to the kobala (Ext. A13), the case of the Plaintiffs, or rather, of the Plaintiff concerned, namely, Plaintiff No. 1, was that this was a collusive and purposive document, which was brought into existence without the said Plaintiff''s knowledge and could not bind him in any manner whatsoever.

The other defences related to certain claims of exclusive title to some of the properties of kha schedule and to the ga schedule by the Defendants and also a case of joint title with regard to the cha schedule properties of the plaint.

The Plaintiffs, on the other hand, contended that, although ka schedule properties had been included in the plaint for partition, they had, as a matter of fact and law, exclusive title to 1/4th of the same and that 1/4th share could not properly form the subject matter of partition. The Plaintiffs also claimed exclusive title to the cha schedule properties of the plaint and, with respect to gha, which the Defendants claimed as their exclusive properties through their mother, who was the recorded owner of the same, the Plaintiffs denied the Defendants'' case.

On the above controversies of the parties, of which the principal one was the alleged previous partition, raised by the Defendants, the learned trial Judge came to the following findings:

That the said previous partition had not been proved and Ext. E was not binding upon the Plaintiffs and could not operate as a bar to the present suit.

That Ext. A. 13 was a collusive document, created with the motive of injuring the Plaintiffs'' rights and without the knowledge of the Plaintiff concerned, namely, Plaintiff No. 1 and could not, therefore, have any effect in law.

That, with regard to the special claims of the parties, asserting exclusive title to some of the plaint properties, the Plaintiffs'' claim with regard to the cha schedule was accepted by the learned trial Judge and his finding with regard to the una schedule was in favour of the Defendants (including the complainant original Defendant No. 3) but, with regard to the rest, namely, ka, kha, ga and gha, he came to the conclusion that the same were joint properties, liable to partition in the present suit, and the assertion of exclusive title of one or the other of the parties in regard to the same or some of them could not be accepted.

The learned trial Judge also made some reservation because of certain sales by the original Defendant No. 3, who, eventually, became a co-Plaintiff, in favour of some of the other Defendants and, with regard to costs, the learned trial Judge allowed costs not only to the original Plaintiffs but also to the said co-Plaintiff.

From the above decree, the contesting Defendants have preferred the present appeal and their principal submission has been that, on the evidence before the Court, their story of previous partition, as appearing in Ext.E, should have been accepted. That, further, their case of exclusive title to some of the properties of the kha schedule and to the ga schedule properties should also have been accepted, although, with regard to the gha schedule, no exclusive claim was pressed in this Court, neither was any specific grievance or, for the matter of that, any grievance made with regard to the cha schedule properties of the plaint.

In the cross-objection, filed by the Plaintiffs they pressed their exclusive claim to 1/4th share of the ka schedule properties, which share, according to them, should have been excluded from the present partition and they also contended that the una schedule should have been included in the decree as joint properties.

We shall deal with the respective contentions in our present judgment.

On the question of previous partition, the defence relies practically wholly on Ext. E with some support, sought to be given to it from Ext. A. 13. In our view, however, on these two documents, the learned trial Judge appears to have reached the correct conclusion. The story of previous partition is somewhat inconsistent with certain circumstances, which appear to us to be almost inexplicable. The document Ext. E, on which this story is set up, is an unregistered one and has no counterpart or duplicate. It appears to have been produced by the Defendants and the custody is claimed by D.W. 1, Sudhir, who is the son of Defendant No. 2 Charu Chandra Maity. It is the Defendants'' case that this document was in the custody of their elder brother, Mahendra, who, shortly before his death, delivered the same along with certain other dakhilas to Sudhir. This part of the evidence, however, does not seem to be very much acceptable or probable in the circumstances of this case, and, if the said evidence be not accepted, proper custody for this document cannot be said to have been established in the instant case with the result that no question of applying Section 90 of the Indian Evidence Act to the said document would arise and the Defendants'' contention to the contrary must be overruled.

Even if Section 90 applies, the presumption under that section would not apply to the contents of the document (Vide in this connection Kotiswar Mukherjee and Others Vs. Paresh Nath Mukherjee and Others, and also the earlier case of the Bombay High Court in Waman Mahadeo Apte Vs. Janardan Balvant Risbud, . The contents, therefore, have to be proved independently and the only evidence on this point, which could be adduced by the Defendants, was the evidence of one Rameswar Maity, who was examined as D.W. 2. This Rameswar seems to be an omnibus witness. He appears to be a witness to the other disputed document (Ext. A13) and although he is not mentioned anywhere in Ext. E, he claims to have been present on the occasion, on which the said document came into existence and to know the details of the so-called transaction of partition, carried out by or under it. This witness, however, had to admit in his cross-examination that he belonged to the rival party of the Plaintiffs, or, in other words, prima facie, there was some clash of interest between him and the Plaintiffs. In this situation, it will be extremely unsafe to reply on the uncorroborated oral testimony of this witness for the purpose of accepting the previous partition on the footing of Ext. E as a bar to the present suit. Moreover, his evidence also on this point as also on Ext. A. 13 seems to be somewhat extreme, hardly acceptable as reliable evidence in the instant case. As to Ext. A. 13, this witness goes to the length of saying that it was the Plaintiff No. 1, who was the purported vendee under the said document, who called him to be a witness to the said deed and that, two days'' after execution, the said Plaintiff No. 1 himself took the document to him for his signature. No suggestion on the point was ever made to the Plaintiff No. 1, when he was examined in Court, and, in the circumstances, it is difficult to believe this part of the story as given by the above witness D.W. 2, Rameswar Maity. If Rameswar''s evidence be excluded, there will be nothing else worth the name to prove the contents of Ext. E or to hold the Plaintiffs bound to the terms of the said document. This is apart from certain inherent defects, noticeable in the said document, which does not appear to be a complete document of partition, dealing with all the joint properties of the parties, as proved in the present case.

In the above view, we are unable to accept either Ext. E, or Ext. A13 as supporting the same, for overruling the Plaintiffs'' present claim for partition.

Before we conclude this part of the judgment, it is necessary to refer to one other aspect, which arose for discussion in this Court. The document Ext. E, which starts as an award for partition ends with an apparent acceptance of the partition by the parties, who are stated to have signified their consent to the same in writing on the said document. A question arose, whether, in such circumstances, the above deed or document would become compulsorily registrable as a document of partition or would still be valid without registration as a partition award u/s 17 Sub-section (2) Clause (vi) or (viii) of the Indian Registration Act before amendment. There appears to be some conflict of judicial decisions, or, at least, of judicial observations, on this point (Vide Yemnava Shidramappa Anchali and Ors. v. Revanshiddappa Mallappa Byakod and Ors. AIR 1927 Bom 656 , Mt. Jasoda Kuer Vs. Punit Singh and Others, , Mukat Nath and Others Vs. Shyam Sundar Lal and Others, , and AIR 1936 877 (Lahore) , on the one hand and Tek Lal Singh and Ors. v. Shyam Sunder Lal and Ors. 19 C.L.J. 123, Masammat Babo Ghulam Fatima v. Ghulam Muhammad Khan and Ors. 39 I.C. 912, Shubrati v. Musammat Hafizan, minor, under the guardianship of Gazal Mohammad 42 I.C. 116, Khazan Chand v. Hamir Chand and Ors. 46 I.C. 625, and (Firm) Hassanand Naraindas v. Jodhomal Chengomel and Ors. AIR 1936 Sind 79, on the other but, in the view, we have taken, it is not necessary to go into that question, although we may indicate that the observations in the first series of decisions which support its admissibility without registration seem to be more pointed and more relevant and the other decisions may be distinguished on one ground or other.

As we have said, however, it is not necessary for us, for purposes of this case, to express any definite opinion on this particular question.

On our finding aforesaid, the defence of previous partition would fail, leaving only the claims of exclusive titles by the parties for our consideration.

With regard to kha, the defence claim is based on certain purchases from the Beras who, according to the Defendants, had exclusive title to some of these properties. It appears, however, from the relevant settlement records that these properties were recorded in the name of Haradhan Maity without any reference to the Beras and, on the materials before the Court, which consist merely of certain conveyances by the Beras, which may, of course, be said to contain assertion of some title by them, it cannot be said that the said presumption, arising from the settlement records, has been rebutted.

In this view, we would uphold the learned "trial Judge''s finding that the kha schedule properties are joint properties of the parties.

With regard to ga, the defence claim is based on certain kabuliyats of the year 1924 to the District Board, but, as pointed out by the learned trial Judge, these properties were in the forcible occupation or possession of the parties'' ancestors or predecessor and, with a view to support and regularise such possession, these kabuliyats were given, and they could not, in any way, affect the real or joint title of the parties to the said properties. In this view, the learned Subordinate Judge''s finding that the ga schedule properties also should be treated as joint properties of the parties for purposes of the present suit should be affirmed.

With regard to gha the initial defence claim was made on the footing that, of the same, the recorded owner was the Defendants'' mother. It has, however, been found by the learned Subordinate Judge that she was a benamdar for the common ancestor of the parties and, upon that finding, he included them as joint properties of the parties in the present suit.

Mr. Sengupta, appearing on behalf of the Defendants Appellants, has not really challenged this part of the finding of the learned Subordinate Judge nor, as already stated, has he challenged the learned trial Judge''s finding in favour of the Plaintiffs in regard to the cha schedule that it belongs exclusively to them.

With regard to una, again, which has been treated as the Defendants'' exclusive property by the learned Subordinate Judge, the Plaintiffs'' claim to the contrary has really no evidence in support of it, and with regard to the Plaintiffs'' claim of exclusive title to 1/4th share of the ka schedule properties, all that need be said is that although there is a presumption in favour of the Plaintiffs'' exclusive title, arising from the settlement records, that presumption, in the circumstances, pointed out by the learned trial Judge, must be held to have been amply rebutted.

In the above view, the decree of the learned Subordinate Judge for partition of the ka, kha, ga and gha schedule properties must be affirmed and the defendants'' appeal and the Plaintiffs'' cross objection against the same must be dismissed. As regards ''una'' which exclusively belongs to the Defendants including co-Plaintiffs, original Defendant No. 3, it must be made clear that the co-Plaintiff''s share is 1/3rd.

Two other questions remain for consideration, namely, as to the reservation, made by the learned Subordinate Judge in respect of the sales by the co-Plaintiff, who was originally a Defendant, to the other Defendants. On this part of the case, the learned Subordinate Judge''s relevant observation appears in the ordering portion of his judgment as follows:

The lands sold by the co-sharers shall be allotted to the shares who made the sale to maintain the possession of the purchaser as far as practicable subject to what has been said about Defendant No. 4 in deciding Issue No. 5.

Defendant No. 4 has not made any complaint against the decree of the learned Subordinate Judge and, with regard to the others, we think, the above observations, if properly carried out, would meet the requirements of justice. We only affirm the same with this further direction or clarification that, if there be any dispute as regards any of such sales, the same will have to be decided by the learned Subordinate Judge and the rights of the parties with regard to the said disputed properties will have to be adjusted between the contesting parties on that footing. For this purpose, the case will go back to the learned Subordinate Judge for a final decision or determination of this aspect of the matter, who, if necessary, will pass a fresh preliminary decree in the light of his said decision or determination.

On the question of costs, the grievance of the Appellants is that no separate decree for costs should have been made in favour of the co-Plaintiff, who, practically, had no independent say in the matter. In our view, this grievance of the Defendants Appellants is justified and the decree for costs, passed in favour of the co-Plaintiff, should be set aside.

Subject to the clarification or modification indicated hereinbefore, the appeal and the cross-objection will be dismissed and the decree of the learned Subordinate Judge will be affirmed but, as already indicated, the case will have to go back to the said learned Judge for a final decision on the question of the rights of the parties, arising on the sales inter se between the original Defendants, and for the passing of a fresh preliminary decree, if necessary, as aforesaid.

There will be no order for costs in this Court, and, subject to the variation, already indicated, the decree for costs, passed by the learned Subordinate Judge, will be affirmed so far as the said Court is concerned.

In the view we have taken, no order seems to be necessary on the application, filed in this Court, for reception of additional evidence under Order 41, Rule 27 of the Code of Civil Procedure, although we may state also that there were no materials before the Court, on which a case for additional evidence can be supported.

Amaresh Roy, J.

I agree.