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Judgment
This Civil First Appeal has filed under Section 96 of the CPC
against the judgment and decree passed by the Addl. District
Judge No.2, Bikaner in Civil Original Suit No.142/1996.
Briefly stated respondent-defendants No.1 and 2 are parents
of appellant-plaintiff and respondent-defendant No.3. Disputed
property is situated in Purani Ginani mohalla, Bikaner. This was
owned joint property of respondent-defendant Bhanwarlal and his
uncle late Mohanlal in proportion is 50:50. Mohanlal died in the
year 1956 and after the death of Mohanlal, Bhanwarlal and widow
of Mohanlal Dhudi Devi became joint owner. Dhudi Devi have
some affection for plaintiff-appellant and, therefore, she wanted to
gift some portion to appellant-plaintiff No.1. The house was owned
jointly by Dhudi Devi and Bhanwarlal, therefore, after obtaining
consent of Bhanwarlal. Dhudi Devi executed gift-deed in favour of
appellant-plaintiff No.1 on dated 23.01.1981. Dhudi Devi
continued to reside with Bhanwarlal, after executing gift deed till
death. The appellant-plaintiff No.1 and respondent-defendant No.3
were residing separately. Dudi Devi died after few months of
executing gift deed. The appellant-plaintiff No.1 and respondent-
defendant No.3 and respondent-defendant No.1 were living
separately. Appellant-plaintiff No.1 and defendant-respondent
No.3 resided separately with respondent-defendant No.1 but
appellant-plaintiff No.2 resided with them. Therefore, joint family
continued. Bhanwarlal has submitted his house in joint possession
of his three sons including him and from that time the house
continued to be in the possession of the Joint Hindu Family. The
respondent-defendant No.3 let out some portion of this property
and started taking rent when appellant-plaintiff asked for his
portion of rent then he started quarreling and also filed false
litigation and, therefore, appellant-plaintiff wants to get 2/5th
portion of the property separately after partitioned for which the
suit was filed. During pendency of the suit the respondent-
defendant No.1 Bhanwarlal died and his LR''s were brought on
record and, therefore, the prayer was made for partition of the
property and 2/5th share of the rent received by respondent-
appellant No.3. Defendant No.1/1 to 1/4 filed the written
statement and denying the 2/5th share of the plaintiffs and
contended that they have only 2/8th share in the property.
Property if divided then only 1/8th share can be given. The
respondent-defendant No.3 vide separate reply and opposed the
suit.
On the basis of the pleadings of the parties 13 issues were
framed and after recording evidence suit of the plaintiff was
rejected. By way of the judgment and decree passed by
19.10.2000 whereby the learned court, despite decision of all
substantial issues in favour of the plaintiffs, has yet proceeded to
dismiss the suit largely on the consideration that the learned court
formed the opinion that the appellants were not entitled to
maintain the suit in the life time of their father Bhanwarlal. The
learned trial court has also proceeded to assume the property in
question to be self acquired property of Bhanwarlal without any
basis and contrary to the evidence on record. It is also contended
that the trial court has failed to consider pleadings of the parties
and the evidence led and produced by the parties The property in
question was established to be an ancestral joint family property
with the appellants having birth right in the same and being
entitled to claim partition of their separate share. The core
question involved in the suit has not been considered by the trial
court in its right perspective and the same has resulted in serious
injustice.
It was also contended that the trial court has failed to
consider the status of the parties qua property in question which
has been pointed out and established to be the property having
been received by Bhanwarlal, defendant No.1 and his uncle
Mohanlal. The share of Mohanlal has been inherited by his
surviving heir Dhudi Devi. It has also been stated that Dudhi Devi
had gifted southern part of 264.25 yards of the house to the
appellant no.1 Heeralal. The Joint family of Bhanwarlal had
continued and the house in question with all the incidents of title
was placed in the common hotch potch of the joint family of
Bhanwarlal. The defendant No.3 has to utilise a usufruct of a
portion of the property by letting out the same and denying the
share of the appellants and hence suit claiming partition became
necessary.
It was also contended that the trial court has failed to
consider that even if the defence sought to be put forward by the
defendant was taken on its face value, the claim was of an oral
partition and then a so called will by Bhanwarlal, the father of the
appellants and defendant No.3. The case of so called oral partition
stands negatived by the trial court and documents sought to be
alleged to be a will has been held to be not a will (vide findings on
issue No.1 and 8). The suit of the plaintiff deserves to be decreed.
It was also contended that while considering the question of
relief, that the learned trial Judge has proceeded to observed that
in the life time of Bhanwarlal, the appellants were not entitled to
claim partition. The learned trial Judge has failed to consider that
firstly the property in question has not been established to be a
self acquired property of Bhanwarlal and in any case, Bhanwarlal
has also expired during the pendency of the suit and his all heirs
were either already on record or had been taken on record. The
suit ought to have been decreed.
It was also contended that the trial court has failed to
consider the evidence of the parties and particularly the evidence
of defendant No.3 Khadag Singh. A bare look at his statement
itself establishes the case of appellants beyond doubt. The trial
court has further failed to consider the other evidence of the
parties and has further failed to consider the law applicable to the
case. In the context of the contentions raised by the appellant,
pleadings and evidence of the parties is considered. From the
pleadings of the parties it is admitted position that Bhanwarlal was
owner of the half portion and his uncle late Mohanlal were also
owner of half portion in the property. After the death of Mohanlal,
his wife Dhudi Devi became the owner by way of succession. It
was also admitted position that the disputed property was
personal property of Bhanwarlal, it was nowhere mentioned that
it was Joint Hindu Property of Undivided Family of plaintiff and
defendants. It was in the year 1982 when Dhudi Devi died then as
per Section 15 Hindu Succession Act 1956. Bhanwarlal was the
only near relative, who was the son of her husband brother. This
way Bhanwarlal received portion of Dhudi Devi and after the death
of Dhudi Devi, Bhanwarlal became the owner of disputed property.
Now, so far as the question whether the Bhanwarlal put the
property in common hotch potch. The evidence of PW''s 1, 2 and 3
was considered and Moolchand in his statement said that in the
year 1996 he went to Bhanwarlal on the occasion of Deepawali
and form that time Bhanwarlal stated to put the property in
common hotch potch at the joint family but it is an important to
note that Bhanwarlal died in the month of March, 1996 and thus
his statement found to be incorrect. In the present case, it is
establish that the Bhanwarlal has got personal property but no
witness produced on behalf of plaintiff stated there was a joint
family property or there was an ancestral property. When there
was no such Joint Hindu Property Bhanwarlal puts personal
property in the joint hotch potch. It was also mentioned in the
plaint that plaintiff-appellant No.1 live separately from his father
and defendant-respondent No.3 also living separately from his
father. Dhudi Devi and Bhanwarlal defendant No.1 and plaintiff
No.2 Purshhotam were living together. When according to the
plaint the appellant-Plaintiff No.1 and defendant-respondent No.3
were living separately from his father and Bhanwarlal only resided
with respondent-defendant No.2 then how joint family can be said
to be existed. It cannot be assumed that while living separately
Joint Hindu Family continued to exist without their any explanation
in evidence. The trial court has after properly appreciating the
evidence on record has rightly observed that fact of Joint Hindu
Family and Joint Hindu Family Property was not established. So far
as the contentions raised in respect of the fact the evidence of
defendant No.3 has not been considered perused the record on
evidence. In this respect the trial court while deciding issue No.1
has considered the material evidence available on record. As per
the evidence of DW-1 and DW-2, the oral partition of the property
was done by Bhanwarlal on 02.10.1981 in the lifetime of Dhudi
Devi. It is very relevant that Dhudi Devi expired after 02.10.1981.
Thus, the Bhanwarlal was not the sole owner of the suit property
and he was owner of half portion. Therefore, he was not having
any right to affect oral partition of the suit property. He was not
having authority to give affect to the partition of the suit property
belonging to the Dhudi Devi. It was pleaded in the plaint that on
23.10.1981 Dhudi Devi with the consent of Bhanwarlal executed
gift deed in favour of plaintiff No.1. On perusal of the gift deed it
was found that this gift deed was executed jointly by the Dhudi
Devi and Bhanwarlal.
DW-1 Khadag Singh in his statement stated that he was not
having knowledge of any gift deed. The execution of gift deed Ex.
1 was proved on the basis of the evidence on record and it is also
proved that there was no oral partition on 02.10.1981. There was
no statement by the defendant that Dhudi Devi ever partition his
portion of the property. When she was the owner of the half
portion. Then how partition of whole property can be affected and.
defendant No.3 would get 513 square meter of land. The trial
court has rightly observed that there cannot be partitioned on
02.10.1981. Bhanwarlal was owner on 519 square meter that
property was also not coparcener property it was a personal
property which cannot be claimed by the sons of Bhanwarlal
during his lifetime.
There is no ground of interference in the judgment and
decree passed by the trial court.
Therefore, the appeal stands dismissed.