Mohani Devi and Another vs Prem Lata

Hon'ble Mr Justice Bashir Ahmad Kirmani, Judge

Impugned in this appeal is preliminary decree and judgment purported to have been passed by District judge, Udhampur on 31.7.1996 in Civil

suit No.96 captioned as: ""Smt. Prem Lata v. Smt. Mohani Devi and anr."" Whereunder while accepting respondents share in the ancestral property,

trial court decreed the same. Following is the circumstantial backdrop.

It appears that the common ancestor of parties namely Nath Ram son of Karam Chand of Udhampur who died in 1969 was survived by his

widow Subhderan Devi daughters, the present parties namely Smt. Prem Lata and Smt. Mohani Devi, and a son Chuni Lal, the defendant No.2 in

original suit. Widow of Nath Ram aforesaid died in 1985 and the property left behind by Nath Rain comprising of a residential house consisting of

five rooms, two kitchens with two shops, and the land appurtenant thereto alongwith a separate shop situated in Lambi Gali, Ward No. 10 became

bone of contention between the parties with respondent/plaintiff claiming I/ 3rd there from on the plea of joint possession and seeking its partition

by metes and bounds besides claiming exclusive possession of one room in the residential house and constructive possession over Iwo shops; and

the appellants/ defendants denying the same on the ground that respondents/ plaintiffs had never been in possession of any part or portion of the

suit property due to which she could not claim any share or portion. Raising plea of exclusive possession over suit property they also pleaded that

long after demise of father, appellant Smt. Mohani Devi had raised two shops and the kitchen on a vacant piece of land out of her own resources,

the land having been transferred by her deceased mother Smt. Subhedran Devi. Rest of the suit property was claimed to be ancestral half of which

after death of Nath Ram devolved upon the son Chuni Lal and the remaining half upon daughters, the appellants and respondents, in equal shares.

An additional plea taken was that during her life time the mother of parties Smt. Subhedran Devi executed an affidavit on 9.5.1981 to the effect

that after death her whole moveable and immoveable property would go to appellant Smt. Mohani Devi alone to the exclusion of other

descendents.

Grounds pleaded to assail the trial court decree are that findings of the court below particularly regarding issue No. 1, 3, 5 and 6 as framed in

the matter are against the weight of evidence, which has not been properly appreciated, while issue No.4, did notarise from pleadings of parties

and was wrongly framed. In condensed form, therefore, the basic attack to impugned decree is that while passing it the trial court did not properly

appreciate the evidence and deduced wrong conclusions there from not permissible in facts and circumstances of the case. Respondent has not

filed any rejoinder to the appeal and during course of submissions while appellant's counsel, besides elucidating the grounds of appeal with

reference to certain portions of the evidence has also contended that in view of Section 28 of Limitation Act, the rights of respondents what ever,

would stand extinguished due to afflux of time, and as being a daughter she could also not ask for partition of joint coparcenery property unless the

male heirs chose to effect the same, etc. In reply respondent's counsel has contended that in view of the admissions made by appellants in the

written statement they could not deny respondent's share in suit property and that as a co-owner she would always be deemed to have been in

joint possession thereof alongwith appellants and as such the trial court has come to right conclusions after rightly appreciating respective evidence

of parties on record. During course of submissions, counsel have cited certain reported cases also, which if necessary, would be discussed in due

course.

I have heard learned counsel, gone through the record and considered the matter. Since appellant's challenge to impugned decree and judgment

is the alleged mis-appreciation of evidence by learned trial judge, it becomes necessary to re-evaluate the same with brief reference to issues

framed and conclusions arrived thereupon. Before that, however, it would be apt to notice appellant's admission of respondents' claim to a share in

the suit property. Perusal of pleadings reveals that in Para 2(a) of written statement the present appellant has admitted that respondent was entitled

to one-fourth out of the property left behind by Nath Ram. With that admission the area of conflict regarding respondent's title to disputed property

would shrink down to the size of her shares only, as respondent claims it to be one third. With admission of her title as such most of the questions,

like nature, of the properties held by Nath Ram and factum of possession thereof having bearing upon respondents claim thereto as a successor to

Nath Ram would loose much of their relevance, leaving the size of shares claimable only to be adjudicated upon.

Coming thus to the issues and evidence lead by parties therefore. On 4.7.1987, learned trial Judge reduced the conflicting pleas of the parties

into following triable issues:

Whether the plaintiff is in possession of one room of the suit property? OPP

In case issues NO. 1 is not proved whether the plaintiff is to pay court fee on Rs. 2, lakes? OPP

Whether the suit property is self acquired property of the father of the parties? OPP

Whether plaintiff is entitled to l/4th share of the suit property and is entitled to possession of the same by meets and bounds? OPD-1

In case issue No.4 is not proved what is the share of the plaintiff in the suit property? OPP

Whether mother of the parties willed a way her share in the suit property in favour of defendant No. 1 OPD-1.

Whether the defendant No. I has constructed two rooms shed one kitchen behind the shops in the suit premises at her own expenses, if so,

what is its effect? OPD-1

whether the suit is triable in a court of competent jurisdiction at Udhampur? OPD

Relief;

and thereafter subjected them to trial. After reading evidence while deciding the issues raised, learned trial judge found the plaintiff/ respondent

entitled to 1/3rd of the disputed property as co-sharer and while up-holding her prayer for parturition of the same by metes and bounds awarded a

preliminary decree to that effect and appointed Munisff, Udhampur as Commissioner for effecting the partition in terms of the impugned decree and

judgment. Hence the appeal on grounds already catalogued hereinbefore.

In the first instance it would be proper to consider the main controversy as containing the substance of dispute regarding nature of the property

and respondents share therein-admitted by appellant to be l/4th and claimed by respondent to be l/3rd for which it is necessary to examine the

nature of property held by father of parties Nath Ram, i.e. whether it was the individual or coparcenery property. Before proceeding further,

however, it may be apt to notice that under Hindu Law the property can either be separate, or joint family property/ coparcenery property i.e. one

over which every coparcener has joint interest, which devolves by survivorship where under male issues or coparcenaries acquire an interest by

birth. Any property which is separate or self acquired by a specific member of the joint family or coparcenery property of the mother becomes

joint family or coparcenery property by operation of the doctrine of blending, if the owner thereof voluntarily throws it into common stock with

express abandonment of all his individual rights therein. Property acquired by joint family or any member constituting it through joint efforts or from

assets of coparcenery property would also become joint between the coparcenaries. Broadly thus, there are three modes of formation of the joint

family or coparcenery property under Hindu Law: first; by inheritance from any of the three immediately preceding paternal ancestors; secondly, by

operation of doctrine of blending; and thirdly, by acquisition. In order to claim individual interest in the property held by father, the claiming

descendent has to show that it was not coparcenery property. In the instant case there is no cogent evidence on record to suggest that the property

in dispute had devolved upon Nath Ram, the father of parties, from any of his three preceding paternal ancestors, so he cannot be said to have

constituted a joint family alongwith appellant Chuni Lal for purpose of the devolution of property in question. In so far as the mode of acquisition of

property by Nath Ram, father of the parties, is concerned, the evidence led by parties is not very specific to the requisite level. Somewhere it has

been stated that part of the property was inherited by him whereas at certain other places he is stated to have created the property himself while

some of the witnesses have expressed ignorance about the factum of acquisition thereof by said Nath Ram. In absence of any direct evidence

regarding acquisition of property by Nath Ram as joint Hindu properly in any of the three modes aforesaid, it cannot be easily presumed to have

been his ancestral property. On the contrary, in absence of positive proof to the contrary, and cumulative appraisal of evidence led by parties, the

probability of Nath Ram, father of parties having acquired the properly himself appears to be quite obvious.

That being so, the fetters those might otherwise overlap respondent/plaintiff's right to claim a share/ partition thereof do not exist. At this stage it

may be relevant to observe that the technical question of the onus of proving that it was so being on respondent, claimed by appellant as not having

been discharged by her, becomes slightly irrelevant because of the fact that parties have already led their respective evidence on issues and all facts

in issue have as such to be considered in cumulative appraisal of the evidence on record. In that view, therefore, as already observed the

probability that the property was self acquired by father of parties namely Nath Ram and had not devolved upon him as joint coparcenery properly

emerges strongly and succession thereto would, therefore, be governed by section 6 of the Hindu Succession Act, under clause (1) of the

Schedule annexed whereto, the parties alongwith their mother would succeed to that property in equal shares, and since the mother has already

expired the succession to Nath Ram's estate as aforesaid would be restricted to parties alone, with each of them becoming entitled to 1' 3rd

thereof.

At this stage the plea taken by appellants/defendants in their written statement that the deceased mother namely Smt. Subhedran Devi had

executed an affidavit intending transfer of her share in the property in favour of appellant Mohni Devi after her death becomes relevant, which

renders consideration of evidence on issue No.6 necessary. It may be recapitulated, that as per appellant the mother executed a document on

9.5.1981, where under she bequeathed her share in the property to her. On examination it transpires that the said document is an affidavit

purported to have been executed Subedran Devi, the mother of parties which is attested by notary. Since appellant relies upon this document it

was for her to prove it before the trial court, which does not appear to have been done. Scribe of the document had reportedly died by the time

the matter arose in trial court, and the sole marginal witness though reportedly available has not been examined, reliance has been sought to be

placed on the certificate of attestation attributed to the notary which has rightly been refused to be accepted by learned trial Judge as proof of late

Subhedran Devi's subscription to the contents of the document, for the simple reason that putting one's thumb impression over the document can

be acknowledged as proof of execution by such person only when the alleged executant is shown to have consciously subscribed to the contents

thereof after fully understanding the same, which has not been done. Even otherwise also, the document itself, even if it is accepted, without any

objection does not appear to be capable of conveying what the appellant claims, for the reason that the alleged executant Subhedran Devi has

there-under declared that after her death the appellant would get one third of the disputed estate, to which she was otherwise also entitled just like

the respondent. Being herself entitled to l/4th of Math Ram's estate as his widow, she could not in law make any declaration regarding l/3rd of the

whole estate for the simple reason that she was in no way competent to do that. In that view, therefore, the document even if presumed to be a

gospel does not in any way effect respondents title as declared by learned trial court. Cumulatively, therefore, its findings on issues No.3, 4, 5, and

6 do not require any interference.

The other pan of controversy relevant here, comprises of appellant's plea that she constructed two rooms and the kitchen forming part of the

estate of deceased father at her own expense and respondents claim that she was in possession of one room in the property. Regarding second

one the evidence on record, including the statement of appellant herself broadly supports the probability of respondents having been in such

possession as against appellant's contentions to the contrary. Otherwise also estate, she becomes a co-owner alongwith others and possession of

any one or more among them would mean possession of all co-owners, unless of course ouster exclusion or abandonment is proved against her.

However regarding appellants claim of having constructed two rooms and a kitchen herself out of own finances, which would certainly mean a lot

of difference as limiting the estate that would otherwise devolve upon parties; as descendants of Nath Ram; incidentally the evidence adduced by

appellant is wanting, as rightly found by learned trial Judge. Neither she has been able to disclose the source of income wherefrom she could have

constructed these rooms etc; nor has she given an account of the expenditure incurred therefor. Her claim that as resident daughter, after death of

mother she created the property is not sufficiently borne out of the evidence. All these features taken together almost improbablise her plea of

having constructed the rooms and property etc. On the contrary, the other side has lead completely cogent evidence to show that these structures

already formed part of Nath Ram's estate. The conclusion, therefore, is that the findings of trial court on this aspect of the case also do not appear

to be liable to be dislodged on any count whatsoever.

Regarding the shop occupied by one Shashi Kumar put in possession as tenant by the late mother of parties who used to receive rent thereof,

the position is that after mothers death the respondent/plaintiff appears to have instituted a suit for recovery of her share there from to which

appellant Mohani Devi admits having filed her written statement which shows that respondent/plaintiff has throughout been claiming common

possession alongwith the appellant/defendant and as such she cannot be ousted from joint possession/ownership of the suit property. Law is well

settled that a co-sharer even though not in actual possession of any portion of joint property can maintain a suit for partition unless his/her ouster

there from is pleaded and proved by the other side.

This brings me to the questions of valuation of the suit and court fee payable as reflected in issue No.2, which depends on respondents claimed

possession of one room in the suit property as reflected in issue No.1 and can as such be effectively considered in view of the evidence led on

issue No.1, so these two issues are required to be taken up for common consideration as rightly done by the trial court. Before proceeding ahead

it may be appropriate to notice respondent's positive assertion that she was in possession of one room out of the suit premises which she had

locked after her mother's death and the lock was broke open by appellants/defendants whereupon the matter was reported to police. On this

aspect while evidence led by respondent/plaintiff is quite cogent that of other side, particularly the statement of appellant Smt. Mohani Devi is quite

wavering to the extent that even while denying breaking open the lock or any subsequent scuffle she has admitted presence of police on spot

supported by her other witness namely Madan Mohan Gupta, who too has testified to the factum of lock breaking and subsequent arrival of police

on spot. That respondent/plaintiff was in possession of the room has also been clearly stated by PW Mani Ram by deposing that

appellant/defendant No.1 herself allowed plaintiff/respondent to occupy the room after demise of their mother, which is further supported by PW

Krishan Dass who says that after death of their mother a dispute regarding possession of the room arose between the sisters i.e. appellant and the

respondent which assumed such a dimension that police had to be summoned, on whose arrival it was found that one of the walls of room had

been broken and some valuable removed out there from. Deriving support from these depositions the respondent/ plaintiff's own statement in this

regard is quite clear and convincing. She had stated that after death of mother she occupied the room and before returning back to her in-law's

house locked it. On finding the room open she lodged a report before police concerned, whereupon possession was restored to her. On

cumulative appraisal of evidence summarized above, therefore, respondent/plaintiff's claim of having been in possession of one room after demise

of mother does not appear to be without substance. Her possession thereof on the date she instituted the suit in trial court has not been rebutted

and thus the question of payment of court fee for seeking possession would not arise.

Then comes to the question of limitation regarding institution of the suit in trial court, and respondent's ouster from property in question as

raised by appellants to be considered alongwith the contention that as a female the respondent could not seek partition of joint property. Perusal of

pleadings in court below however reveals that no such plea has been taken by appellants in the suit and as such their projection at the hearing of

appeal only appears to be an afterthought which the respondents had no occasion to rebut at the trial. It hardly needs be said that a plea of ouster/

exclusion or abandonment has to be specifically pleaded and proved against a party and cannot be lightly assumed on mere asking of the

contender. Similarly, the plea of limitation not taken at the trial of suit appears to be belated on the face of it when projected at the appellate stage,

particularly because the effected side would have an opportunity to meet it through evidence at the trial, only when it was not there at all. That is

the main reason why this plea should not be entertained at this stage. Same is the case with the plea that respondent being a female sharer could

not seek partition of the property. This plea also appears to have been taken for the first time, even though it involves determination of certain

factual aspects, never pleaded in the trial court and facts nor pleaded before and tried by the trial court in the basic suit, cannot be projected in the

appeal; and that being so, none of the pleas referred to above merit consideration at this stage. This aspect renders appellants petition for allowing

additional evidence also unworthy of consideration.

For all that has been discussed above, the appeal is dismissed alongwith appellants CMP for allowing production of additional evidence.