AI Structured Summary
Not yet generated for this judgment
Judgment
The respondent No.3-Cross-Objector, on receiving
notice of the appeal, has preferred this cross-objection and
contended that the trial court has not decided the issues in
accordance with logical requirement of the case, for the simple
reason that issue No.2 is to be decided after the decision of issue
No.1 because the start of issue No.2 is to the effect that if the
issue No.1 is decided against the present respondent, then the
same will be considered and as such the issue No.1 should have
been decided first and thereafter the findings could have been
given on issue No.2. But in the present case, the same has not
been done and as such the finding on issues Nos.1 and 2 deserve
to be set aside. It was also contended that the respondents have
categorically come out with a logical case that in terms of the oral
decision taken between Dhudi Devi and Bhanwarlal, a gift was
made and in the cross-examination the question was raised in as
to whether the gift-deed has been seen by the replying
respondent, to which he has stated that he has seen in the court,
cannot form the basis to say that he was not knowing about it, it
was not so because Ex.A/13/1 is the document which has been
produced by the respondent cross-objector himself and in that
document the reference to gift-deed, which was only in order to
save the stamp duty, has been given. No question has been asked
in the cross-examination with regard to veracity of the document
Ex.A/13/1 and this document has been produced by the
respondent himself and as such the finding of the lower court that
he was not knowing about the gift-deed is strange because this
has been read out of context because this gift-deed was formally
executed in terms of the oral decision to partition the property by
Bhanwarlal and Dhudi Devi and that property was self acquired
land of both of them and as such this fact has been stated in the
will and if this is not accepted, then the court should have come to
the conclusion that in terms of the will dated 06.03.1996, the
property has been distributed in terms of the so called oral
partition and that oral partition synchronize with the gift-deed and
there is no contradiction between them and this gift-deed was only
a formality and also proves the fact of oral partition, otherwise
there was no question of making this gift to one son because he
was to take loan from the Government for the purpose of
construction of house and for this purpose he was in want of
registered documents therefore, this registration was made and
for others, in order to save stamp duty, the oral partition was
made by Bhanwarlal and if the oral partition is not accepted then
too by virtue of will, the respective portion has been allotted and
in this context written admission of Heera Lal himself vide
Ex.A/1/1, wherein he has moved the application to the Collector
on 30.07.1991 that the family arrangement is going to be finalized
and all the members of the family are being represented the share
by partition and in that I want to construct the house and this is
the foundation of the gift-deed which is nothing but an act in
furtherance of the oral partition and this fact has already been
stated by Shri Bhanwar Lal in Ex.A/13/1 and the court has neither
considered this Ex.A/1/1 and nor Ex.A/13/1 and without
considering these two documents, the decision on issue No.1 is
without any justification.
It was also contended that decision on issue No.8 is
also illegal and finding on issue No.8 is liable to be set aside for
the simple reason that the document Ex.A/13/1 has not been
taken into consideration in its right perspective for the simple
reason that it has stated the history that how he has given the
share of his own property and also the property of Dhudi Devi
amongst his sons and he has also stated all those facts in
Ex.A/13/1 and ultimatley he has stated that the so called oral
partition is lile his las twill and as such when this is proved that
Shri Bhanwar Lal was the exclusive owner of the property and it
was his self acquired property and so was the case with Dhudi
Devi and when he has disposed off his property in terms of oral
partition, then even if the oral partition is not considered then too
this may be considered to be the last will because there is no
contradiction between these two. But, this fact of the case has not
been looked into by the learned trial court while deciding issue
No.8.
In the context of cross-objection, pleadings and
evidence on record have been considered.
So far as contention of the cross-objector that issue
No.2 is to be decided after the decision of issue No.1 is concerned,
on perusal of both the issues Nos.1 and 2, it is clear that the trial
court preferred to decide the issue No.2 before decision of issue
No.1 on the ground that it is important to see that who is the
owner of the disputed house and there is no controversy on the
basis of plaint as well as in the written statement filed by the
defendant No.3 that Bhanwarlal and his uncle Mohanlal were the
owners of 1/2 - 1/2 portion of the property and there is no logical
requirement of the case that issue No.2 is to be decided after the
decision of issue No.1.
So far as contention of the cross-objector that the trial
court has neither considered Ex.A/1/1 and Ex.A/13/1 and without
considering these two documents, the decision on issue No.1 is
without justification is concerned, from the perusal of Ex.A/13/1,
will, the property was not given to anyone. Only this fact has been
mentioned that on 02.10.1981, with the consent of Dhudi Devi,
oral partition has been done and according to that his sons were
holding the possession. The trial court has rightly observed that
Ex.A/13/1 is neither will nor a family arrangement after
discussion, while deciding issue No.8.
So far as the contention raised in respect of decision of
issue No.8 is concerned, admittedly, Bhanwarlal was owner of 1/2
portion and his uncle late Mohanlal was also owner of 1/2 portion
of the property. After the death of Mohanlal, his wife Dhudi Devi
became the owenr 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 of
the Hindu Succession Act, 1956, Bhanwarlal, who was the only
near relative and was the son of her husband''s brother, received
portion of Dhudi Devi and after the death of Dhudi Devi, he
became the owner of the disputed property. Now, so far as the
question whether Bhanwarlal put the property in common hotch
potch is concerned, 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 at
that time, Bhanwralal state to put the property in common hotch
potch at the joint faily but it is important to note that Bhanwar Lal
died in the month of March, 1996 and thus his statement is found
to be incorrect. In the present case, it is established that Bhanwar
Lal has got personal property but no witness produced on behalf
of the plaintiff stated that there was a joint family property or
there was an ancestral property. When, there was no such joint
family property, Bhanwarlal put personal property in the joint
hotch potch. It was also mentioned in the plaint that plaintiff-
appellant No.1 lives separately from his father and defendant-
respondent No.3 valso living separately from his father. Dhudi
Devi and Bhanwar Lal, defendant No.1 and plaintiff No.2
Purshottam were living together. When according to the plaint the
appellant-plaintiff No.1 and defendant-respondent No.3 were living
separately from their father and Bhanwar Lal only resided with
respondent-defendant No.2, then how joint family can be said to
have been existed. It cannot be assumed that while living
separately, Joint Hindu Family continued to exist without there
being any explanation in evidence. The trial court has, after
properly appreciating the evidence on record, rightly observed
that the fact of Joint Jindu Family and Joint Hindu Family Property
was not established.
It is important to note that as per the evidence of DW-1
and DW-2, the oral partition of the property was done by Bhanwar
Lal on 02.10.1981 in the lifetime of Dhudi Devi, who expired after
02.10.1981. Thus, Bhanwar Lal was the sole owner of the suit
property and he was owner of 1/2 portion. Therefore, he was not
having any right to effect oral partition of the suit property. He
was not having authority to give effect to the partition of the suit
property belonging to Dhudi Devi. It was pleaded in the plaint that
on 23.10.1981, Dhudi Devi, with the consent of Bhanwar Lal,
executed gift-deed in favour of plaintiff No.1 but on perusal of the
gift-deed, it was found that this gift-deed was executed jointly by
Dhudi Devi and Bhanwar Lal. The execution of the 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 partitioned
her portion of the property. When she was the owner of half of the
portion, then how partition of whole property can be effected.
The trial court has rightly considered the facts and
evidence on record and rightly decided issue No.8 and decided
that Ex.A/13/1 was not a will nor it is a family arrangement.
In view of the above, I find no merit in the cross-
objection and the same is accordingly dismissed.