Krishna Nand Sahu vs Suwanti Devi

Mungeshwar Sahoo, J.—The defendants 1st set have filed this first appeal against the judgment and preliminary decree dated 28.02.1973 passed by learned 1st Additional Subordinate Judge, Sasaram in Title Suit No. 167 of 1964/64 of 1965 whereby the court below decreed the plaintiffs-respondents'' suit for partition.

The plaintiffs-respondents filed the aforesaid suit claiming partition of plaintiffs'' 1/3rd share in the suit property described in Schedule A, B and C to the plaint.

The plaintiffs claimed the aforesaid relief alleging that the defendant no. 1 is the step brother of plaintiff no. 1 Bhirgunath Sah born through 4th wife of Ram Baran Sah. The defendant no. 5 is the 5th wife of Ram Baran Sah. The plaintiff no. 1 Bhirgunath Sah is the son of Ram Baran Sah. Ram Baran Sah died leaving behind two sons, namely, Bhirgunath Sah (plaintiff no. 1) and Krishna Nand Sah (defendant no. 1) and widow (defendant no. 5). The suit property is still joint. Ram Baran Sah had acquired certain properties as Karta out of the joint family fund and the sale deeds are in the name of two sons. The plaintiff had executed Rehan deed for Rs. 125/- on 09.06.1936 at the instance of his father Ram Baran Sah as the joint family was in need of money. When the mother of defendant no. 1 was creating trouble stating that no property should stand in the name of the plaintiff no. 1, at her instance the father asked the plaintiff to execute the sale deed in respect of the property standing in his name, although no consideration money was received by him.

The defendants-appellants contested the suit. Their case is that there had already been partition by metes and bounds 27-28 years ago and since then the parties are separate in all respect including the residence, mess and cultivation. They are also dealing with the properties separately. The plaintiff no. 1 was not the karta after death of Ram Baran Sah. The plaintiff was separate during the lifetime of father Ram Baran Sah. After partition the properties were acquired by them which are their exclusive properties. Ram Baran Sah gifted his property to Rajendra Prasad (son of defendant no. 1) by registered gift deed in the year 1957 and the donee came in possession of the property. The Rehan deed executed by plaintiff was redeemed by Ram Baran Sah. There had been many transactions by father and the plaintiff and defendant. The plaintiff no. 1 mortgaged his properties allotted to him in partition to one Mewa Sah earlier which was sold by him on 11.06.1943 to Ram Baran Sah. All others allegations regarding jointness and joint possession was denied by the defendants. The defendant no. 5 did not contest the suit.

On the basis of the aforesaid pleadings of the parties the trial court framed the following issues:

(i) Is the suit as framed maintainable?

(ii) Has the plaintiff any cause of action for the suit?

(iii) Is the suit bad for defect of parties?

(iv) Is the suit barred by limitation, estoppel, waiver and acquiescence?

(v) Is the suit bad for partial partition?

(vi) Is there any unity of title and possession between the parties with respect to the suit land?

(vii) Is the story of partition by metes and bounds as set up by defendant no. 1, correct?

(viii) Are the plaintiffs entitled to claim partition, if so, what would be their shares?

(ix) To what relief or reliefs, if any, are the plaintiffs entitled?

The court below came to the conclusion that there was no partition by metes and bounds as contended by the defendants as such there is unity of title and possession. Accordingly the plaintiffs'' suit was decreed.

The learned senior counsel Mr. Surendra Kumar Singh for the appellants submitted that the learned court below discarding the documentary evidences which are registered documents recorded wrong finding to the effect that there had been no partition. The court below also did not consider the effect of inter se transaction and also the fact that the parties were acquiring properties or transferring the properties exclusively treating the said properties as their exclusive properties, therefore, the impugned judgment and decree are unsustainable. The learned counsel further submitted that in the deeds, which came into existence prior to institution of the suit, admission was made by father Ram Baran Sah to the effect that there had been partition. Therefore, the said admission made by him is admissible under Section 32(7) of the Evidence Act. According to the learned counsel the gift deed is also dated 10.05.1957 executed by Ram Baran Sah in favour of Rajendra Prasad. In this gift deed in the boundary of one plot the plaintiff has been shown as owner of the boundary property, which also indicates that there had already been partition between them long ago. According to the learned counsel this gift deed executed by Ram Baran Sah could not have been revoked unilaterally by him on 17.09.1963. The learned counsel further submitted that in addition to the documentary evidences the plaintiff also examined witnesses in support of the case that there had already been partition but the court below disbelieved the witnesses and moreover when there are overwhelming documentary evidences the same shall prevail on the oral evidences. The court below, therefore, wrongly decided the issues between the parties. On these grounds the learned counsel submitted that the impugned judgment and decree be set aside and the plaintiffs'' suit for partition be dismissed.

It appears that notice has been validly served on the other side and the name of the learned counsel is also printed in the daily cause list but nobody appeared on behalf of the respondents.

In view of the above submission the only point arises in this first appeal for consideration is as to whether the parties are joint and there is unity of title and possession in regard to the suit property as alleged by the plaintiff or there had already been partition as alleged by the defendants?

The plaintiffs filed the simple suit for partition claiming 1/3rd share. The genealogy is admitted by the parties. According to the genealogy, Ram Baran Sah had two sons, namely, plaintiff no. 1 Bhirgnuath Sah and defendant no. 1, Krishna Nand Sah. Ram Baran Sah died prior to institution of the suit leaving behind these two sons and one widow, defendant no. 5 (Ragini Kuer), therefore, the plaintiffs prayed for 1/3rd share. On the contrary according to the defendant no. 1 and his heirs, there had already been partition during lifetime of Ram Baran Sah and the plaintiff no. 1 separated from the father taking his share in the property. In 1957 Ram Baran Sah gifted his properties to Rajendra Prasad, son of defendant no. 1. In support of the respective cases the parties have examined witnesses and also produced documentary evidences.

The plaintiffs examined three witnesses only. P.W. 3 is the plaintiff himself. P.W. 2 is a formal witness, who has produced Ext. 1 (the registered deed of cancellation). The other witness P.W. 1 has stated that there has been no partition by metes and bounds. It is settled principles of law that the Hindu family is presumed to be joint unless the contrary is proved. Therefore, the defendant who alleges that there had already been partition has to prove his case of partition. In this case the defendants have also examined witnesses who have stated that there had already been partition. D.W. 1 in the cross-examination specifically stated that in his presence partition took place. From perusal of the judgment of the court below it appears that the court below did not rely on his statement on the ground that in examination-in-chief he did not say that partition took place in his presence. In my opinion, therefore, the court below wrongly on untenable grounds discarded his evidence. When the witness stated in his cross-examination that in his presence partition took place, it fully supports the defendants'' case. D.W. 3 also stated that in his presence partition took place. Both the witnesses, i.e. P.W. 1 and D.W. 3 have stated about the area of land allotted to the plaintiff. However, the court below disbelieved them on the ground that there is contradiction in their deposition. Regarding period of partition there is difference of one year and likewise in area of land allotted also there are differences. It may be mentioned here that here the dispute between the parties is whether there was partition or no partition. The witness can say approximately the period of partition and likewise the area of land allotted by memory. Therefore, the deposition should not be examined and weigh as per the mathematical calculation. D.W. 7 is the defendant no. 1 himself. He has fully supported his case of previous partition.

In support of the previous partition the defendants have produced Ext. A, the sale deed dated 11.06.1943 executed by plaintiff no. 1 in favour of his father Ram Baran Sah. This sale deed is therefore, an inter se transaction between the coparceners. So far this sale deed is concerned, explanation has been given by the defendant that at the instance of mother of defendant no. 1 he transferred the property to the father because the property was in his name and mother of defendant no. 1 was creating trouble saying that no property should stand in the name of plaintiff no. 1. So far this explanation is concerned, it cannot be relied upon in the present suit.

The Supreme Court in the case of Harihar Prasad Singh and Another Vs. Must. of Munshi Nath Prasad and Others, considering the various documents and also the transaction inter parties held that as these documents are ante litem motam and as some of them are inter parties and extend over a considerable period of time, they form cogent and strong evidence that the lands are private lands.

A Division Bench of this Court in the case of Ram Bahadur Nath Tiwary Vs. Kedar Nath Tiwari and Others, has held that separate transaction by members of a joint family may not by themselves establish separation, but mutual transaction between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation. In order to prove partition, it must be established that the parties altered and intended to alter their title to the property and that there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective share in severalty. In the present case at our hand, the defendants alleged that 26-27 years ago there was partition and plaintiff separated. Therefore, according to the defendants partition took place in the year 1938. The sale deed was executed in the year 1943.

Ext. A(2) is a sale deed dated 18.06.1960 by which the plaintiff no. 1 purchased property from Sukhdeo Singh. Ext. A(3) is a sale deed dated 29.01.1948 executed by plaintiff no. 1 in favour of one Ganaur Kahar. In this sale deed the plaintiff no. 1 stated that the property, which was sold, was his own property and he was in need of money. Ext. A(4) is sale deed executed by Krishna Nand Sah on 09.05.1960. All these deeds are ante litem motam documents, i.e. prior to the institution of the suit when there was no dispute between the parties. Likewise Ext. C(1) is the Rehan deed dated 08.06.1960 executed by Sukhdeo Singh in favour of plaintiff no. 1. It appears that subsequently the property was sold by him in favour of plaintiff no. 1 by Ext. A(2). Ext. C(2) to Ext. C(5) are all Rehan deeds executed by Ram Baran Sah in 1950 and 1951. Ext. F is Rehan deed dated 29.07.1952 executed by Ram Baran Sah. Ext. F(1) is the Makfula deed dated 15.04.1963 executed by Ram Baran Sah. All these documents show that since long the parties were either acquiring the property or transferring the property or parting their interest in the property independently. Out of them Ext. A is the inter se transaction. All these documents are prior to the institution of the suit.

Ext. B is the registered gift deed executed by Ram Baran Sah in favour of Rajendra Prasad. This document is again inter se transaction between the members of the coparceners. This Ext. B is dated 15.05.1957. In this registered gift deed the father stated that he gifted his property to the donee. In the schedule of Ext. B the definite property with boundary has been mentioned. In one plot i.e. plot no. 654 in the south boundary name of Bhirgunath (plaintiff no. 1) has been mentioned. In this registered gift deed it is specifically stated that there had been partition in 1345 fasli (equal to 1938) and in that partition Bhirgunath Sahu, plaintiff no. 1 and his dependents separated in all respects and the donor and his son defendant no. 1, Krishna Nand remained joint. This statement has been made by father when there was no dispute between the parties. The statement made by Ram Baran in this Ext. B is admissible according to Section 32(7) of the Evidence Act as Ram Baran Sah has died. Moreover, the document is registered document, therefore, the presumption is that it is a genuine document.

In rebuttal of this document the plaintiff has filed Ext. 1, the cancellation of gift deed which is dated 17.09.1963. It may be mentioned here that after this deed the plaintiff instituted the suit on 08.09.1964. So far this cancellation deed is concerned, it has been executed and registered more than five years after the gift deed. It is settled principles of law that on execution and registration of the gift deed and delivery of possession of the property the donee will become the owner of the property. Therefore, when Ram Baran Sah executed the cancellation deed he was not the owner of the property. So he could not have made any statement with regard to the property which do not belong to him. In other words unless the gift deed, Ext. B is either declared void or voidable, no title will re-vest on Ram Baran Sah on the basis of Ext. 1.

In the case of Md. Noorul Hoda Vs. Bibi Raifunnisa and Others, the Supreme Court has held as follows:

"When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled, or set aside or rescinded. Section 31 of the Specific Relief Act 1963 regulates suit for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it."

Admittedly in the present case no such proceeding or suit was ever filed by Ram Baran Sah seeking such declaration with respect to Ext. B. In the case of Abdul Rahim and Others Vs. SK. Abdul Zabar and Others, the Supreme Court has held as follows:

"A suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act. The suit therefore, should have been filed within a period of three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place"

In the present case, at our hand, the deed has been executed by Ram Baran Sah, therefore, he had the knowledge about the nature of the deed. In the cancellation deed it is mentioned that assurance was given to pay the amount to the creditors but no amount was paid. If this is the fact then Ram Baran Sah should have brought the suit within three years for cancellation of the transaction on this ground because the ground taken by the plaintiff is dependent on the evidence. Unilateral statement is not acceptable in view of the aforesaid law laid down by the Apex Court.

From perusal of the impugned judgment it appears that the court below on assumption and presumption held that on 24.06.1926 plaintiff no. 1 would not be more than eight years, therefore, he could not have purchased the property by Ext. A(1). It may be mentioned that it is not the case of any party that plaintiff was minor in the year 1926. The court below calculated the age on the basis of statement made by him regarding his age on the date of deposition. None of the parties even the plaintiff raised this question that he was minor on the date of execution and registration of the sale deed dated 24.06.1926. Likewise the court below disbelieved Ext. C dated 09.06.1936 on the ground that on that day plaintiff was not more than 18 years of age. Regarding Ext. A, the inter se transaction, the court below held that this document clearly indicates that there was no separate property available in 1943 for disposition by Bhirgunath Sah, a junior member of the family and that his share could not have been defined then. In my opinion, therefore, all these reasonings assigned by the court below without examining the law laid down by the Supreme Court are untenable reasons and cannot be accepted. The court below has not at all examined the admission made by father Ram Baran Sah in Ext. B.

In view of above discussions now it becomes clear that the parties are dealing the property since 1943 separately and even there are inter se transactions. Properties are sold separately and are also acquired separately. One of the coparceners, i.e. father of the parties Ram Baran Sah admitted that there was partition in 1938 and the plaintiff no. 1 separated from them. All these evidences produced by the defendants-appellant clearly indicate that there had already been partition between the plaintiff and the defendant in the year 1938, therefore, there is no unity of title and possession between the parties with respect to the suit properties. The court below without considering the settled principles of law recorded the finding as stated above. Therefore, the finding of the court below is hereby reversed. Since there had already been partition between the parties and there is no unity of title and possession, the plaintiffs are not entitled to repartition of the property.

In the result, this first appeal is allowed. The impugned judgment and decree are hereby set aside. The plaintiffs'' suit for partition is thus dismissed. No order as to cost.