Satya Narayan Prasad and Others vs Urmila Devi and Others

Mungeshwar Sahoo, J.—The plaintiffs have filed this first appeal against the judgment and decree dated 25th July, 1985 passed by learned 4th Subordinate Judge, East Champaran at Motihari in Partition Suit No. 194 of 1978/ 39 of 1982 decreeing the plaintiffs'' suit in part.

The plaintiffs appellants filed the aforesaid partition suit claiming half share in the suit property alleging that one Parsuram Lal had two sons namely, Shambhu Ram and Shiv Prasad Ram. Shiv Prasad Ram died in jointness with his brother Shambhu Ram and his only son Vilash Ram, the plaintiff No. 1. The plaintiff No. 1 Vilash Ram had four sons Niranjan Lal, Kashinath Prasad (defendant No. 1), Bishwanath Prasad and Satyanarayan Prasad (plaintiff No. 2). The plaintiff No. 3 to 5 are sons of plaintiff No. 2 and likewise defendant Nos. 2 to 6 are sons of defendant No. 1. Bishwanath Prasad died in 1979 leaving behind his widow Anandi who is defendant No. 7 and a son Ashok Kumar who is defendant No. 8. Shambhu Ram had no issue and, therefore, he adopted Niranjan Lal. He acquired the properties in the name of his adopted son Niranjan. About 40 years ago Shambhu Ram died in state of jointness with plaintiffs and defendants leaving behind his adopted son Niranjan Lal. After two years of his death Niranjan Lal died unmarried in state of jointness with the plaintiffs and defendants. Therefore, the properties of Shambhu Ram and his adopted son devolved on plaintiff No. 1. Plaintiff No. 1 also acquired several properties in the name of his sons and grand-son which are in joint possession of the parties. The original plaintiff No. 1 Vilash Ram became old and defendant No. 1 started looking after the family business. Some of the joint family properties have been sold which are not included in the suit. Since 1976 the parties are living separately and have started separate business. Their mess is also separate but the properties have not been partitioned by metes and bounds. There is unity of title and possession between the parties with regard to schedule 2 properties which have been purchased out of the income from the joint family.

The defendant No. 1 Kashinath filed a contesting written statement alleging that there had already been partition between Shambhu Ram and Shiv Prasad. After partition Shambhu Ram adopted this defendant No. 1 Kashinath when he was aged about 10-11 years. This adoption took place according to customs. The alias name of this defendant No. 1 is Niranjan Lal. The partition between the two brothers namely Shambhu Ram and Shiv Prasad took place in or about 1938. After adoption the properties which were purchased by Shambhu Ram is in the name of this defendant Kashi Nath @ Niranjan Lal. Niranjan Lal did not die as alleged by the plaintiff. The properties which are purchased in the name of this defendant has been mentioned in the schedule of the written statement which belong to him exclusively.

The defendant No. 8 also filed a contesting written statement alleging that many properties have been transferred and the transferees have not been made party. He supported the case of the defendant No. 1 that he is adopted son of Shambhu Ram and the properties of Shambhu Ram can not been partitioned. He also alleged that there had been separation between the two sons and Ram Vilash himself 18 years ago i.e. in or about 1961 and after separation the plaintiff sold many of the properties and, therefore, the said properties be allotted in the share of the defendant. This defendant is in possession of 5 bigha 2 kathha 8 dhur land and, therefore, if partition is affected he may be allotted the said lands. It appears that the transferees were added subsequently as defendant Nos. 9, 10 and 11.

The defendant No. 9 filed written statement alleging that he has purchased the land from plaintiff No. 1 and, therefore, his purchased land may be allotted in the share of plaintiff No. 1. Moreover defendant Nos. 5 and 6 also filed formal written statement through guardian ad litum.

On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues.

(i) Whether the suit as framed is maintainable ?

(ii) Whether the plaintiffs have got valid cause of action and right to sue ?

(iii) Whether the suit is barred by limitation and hit by the principle of ouster ?

(iv) Whether the plaintiffs have got unity of title and unity of possession with respect to the suit property ?

(v) Whether the story of previous partition is correct ?

(vi) Whether defendant No. 1 Kashinath is the adopted son of Shambhu Ram and his name is Niranjan ?

(vii) Whether the plaintiffs are entitled to relief of partition and if so, in which property and to what extent ?

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

It appears that during the pendency of the suit the original plaintiff No. 1 Vilash Ram died. After trial the learned court below recorded finding that there had already been partition between Shambhu Ram and Shiv Prasad Ram. Niranjan Lal did not die as alleged by the plaintiff rather the alias name of defendant No. 1 Kashi Nath is Niranjan Lal. The properties mentioned in the written statement are the property of branch of Shambhu Ram and the said property cannot be partitioned. The defendant No. 1 is not claiming any share in the property of Vilash Ram. The learned court below also found that there had been no partition between the two sons of Vilash Ram i.e. Vishwanath and Satya Narayan and, therefore, decreed the plaintiffs'' suit to the extent of half share on the property of the deceased Vilash Ram.

The learned counsel for the plaintiffs submitted that the learned court below has wrongly recorded a finding that there had already been partition between Shambhu Ram and Shiv Prasad. There are overwhelming evidences on record to show that both the brothers were joint and Shambhu Ram died in the estate of jointness. Likewise the lower court below wrongly recorded a finding that the alias name of defendant No. 1 is Niranjan Lal who is still alive. The learned counsel next submitted that the defendant No. 1 even if held to be the adopted son of Shambhu Ram the properties covered under Ext.2 and 2(i) the sales deeds which are in the name of Niranjan and Vilash Ram could not have been the property of defendant No. 1 because according to the plaintiff himself he was adopted in the year 1936 or 37. Ext. 2 is dated 31.7.1935 which is standing in the name of Niranjan Lal son of Vilash Ram. When the defendant No. 1 was adopted in the year 1936 or 1937 he was aged about 10-11 years as pleaded in the written statement and stated in the evidence, this property cannot be said to be his self acquired property. The defendant No. 1 also never claimed it as his self acquired property. In the sale deed his father''s name has been mentioned as Vilash Ram therefore, admittedly the properties which has been purchased by this Ext.2 dated 31.7.1935 is the properties of Vilash Ram. Likewise the property purchased through Ext.2/i sale deed dated 13.1.1929 is in the name of Vilash Ram which cannot be the property of defendant No. 1.

The learned counsel for the appellants next submitted that the defendant No. 1 was a cunning person and created the document to prove himself as the adopted son of Shambhu Ram. The witnesses examined on behalf of the plaintiffs clearly stated that Kashinath is not Niranjan lal. Niranjan lal who was adopted by Shambhu Ram died two years after the death of Shambhu Ram but the learned court below has misread the evidences and wrongly discarded the same. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decree are liable to be set aside and the plaintiffs'' suit be decreed to the extent of 1/3rd share in the entire property.

On the other hand, the learned counsel appearing on behalf of the respondents submitted that the learned court below has considered many sale deeds and mortgage deeds which are ranging from 1945 to 1965 standing in the name of Niranjan Lal son of Shambhu Ram and, therefore, learned court below considering these documentary evidences has rightly recorded a finding that Kashi Nath and Niranjan Lal are the same person. The plaintiffs approached the court with uncleaned hand with a view to get benefit suppressing material facts. There had already been partition between the two branches i.e. Shambhu Ram and Shiv Prasad and after partition the parties were dealing the properties separately. Their residence, mess, business were separate. The properties were acquired by separate deeds in their own names. The properties were sold by them independently to third parties and moreover the defendant No. 8 himself has admitted the fact that the alias name of defendant no. 1 is Niranjan Lal who was adopted by Shambhu Ram. Considering all these facts and circumstances of the case, the learned court below has rightly excluded the properties of defendant No. 1 from partition because the adoption is admitted case of the parties. Therefore, there is no illegality in the judgment and decree as such in first appeal it cannot be interfered with. On these grounds, the learned counsel for the respondents submitted that the first appeal is liable to be dismissed.

In view of the above contentions of the parties the points arise for consideration in this appeal are :

(a) whether there had been partition between the Shambhu Ram and Shiv Prasad as alleged by defendant No. 1 or Shambhu Ram died in jointness with his brother Shiv Prasad and plaintiff ?

(b) whether the defendant No. 1 Kashinath and Niranjan Lal are one and same person or not ?

(c) whether the properties which are covered under Ext.2 and 2/i are the properties of Shambhu Ram or is a joint family properties of Vilash Ram.

Point No. (a) - According to the plaintiff Shambhu Ram and Vilash Ram were joint and Shambhu Ram died leaving his adopted son Niranjan and sons of Vilash Ram. Subsequently Niranjan lal also died after two years of the death of Shambhu Ram. On the contrary, according to the defendant No. 1 there had been partition 40 years ago between Shambhu Ram and Shiv Prasad Ram. Therefore, on calculation according to the defendant this partition took place between the two brothers either in the year prior to 1939 or 38. The witnesses examined on behalf of the defendants i.e. DW 1 to 7 and 9 have all stated that Kashi alias Niranjan is in exclusive possession of the properties mentioned in the written statement, the DW 8 is the defendant No. 1 himself. He has fully supported his case as made out in the written statement. The important witness is DW 10 who is defendant No. 7 and mother of defendant No. 8. She has stated that she was married 30-35 years ago and at that time Niranjan @ Kashi was living with his original father. He was living and possessed all the properties of his adopted father in a separate house and still he resides in the said house. It may be mentioned here that this witness is deposing against her interest.

Ext. B is the sale deed of the year 1965 in the name of Niranjan Lal son of Shambhuram. Ext.2-K is the C.C. of sale deed dated 11.8.1937 in the name of Niranjan. Ext. B-2 is sale deed dated 8.6.1965. Ext. D is mortgage deed dated 30.4.1968 executed by Shiv Nandan in favor of Niranjan. Ext. D/1 is another mortgage deed dated 4.10.1968. Ext. D/2 is another mortgage deed dated 27.2.1970.

Ext. D/3 is mortgage deed dated 6.9.1970. Ext. D/4 is mortgage deed dated 27.2.1970. Ext. D/6 is mortgage deed dated 1.8.1968. All these mortgage deeds are in the name of Nirnjan Lal. Ext. 3 is the document of the plaintiff which is misc. receipts of Betiya estate which is dated 3.5.1945 in the name of Niranjan. All these documents show that Niranjan was dealing with the property independently ranging from the year 1945 up to the institution of the suit. Ext. 2 series which are the sale deeds filed by the plaintiffs themselves shows that the properties have been acquired in the name of either Vilash Ram or Satya Narayan Ram or Bishwanath. Ext. 2-A is dated 31.7.1956 which is in the name of plaintiff No. 2 Satya Narayan Prasad. Ext.2-B is dated 8.8.1944, Ext. 2-C is dated 8.8.1944 and Ext. 2-D is dated 2.1.1945 and Ext.2(E) is dated 6.10.1948 are in the name of Bishwanath Prasad. Ext. 2(i) is the sale deed dated 13.1.1929 in the name of Vilash Ram. All these documents even filed by the plaintiffs show that the parties were acquiring the properties independently since long.

In view of the evidences oral as well as documentary including the documents of the plaintiffs and the evidence of PW 10 shows that the parties were separate in mess, separate in residence, separate in business, cultivating the land separately, acquiring the properties separately and also dealing with the properties independently and also some of the properties have been sold by the plaintiffs No. 1 himself and purchaser have been added as defendant Nos. 9 and 10 and 11. In the case of Arjun Mahto vs. Monda Mahatain AIR 1971 Patna 215 a division bench of this Court has held that when no contemporaneous documents are available the question whether the properties remained united or separate can be proved by the intention of the parties manifested by their subsequently conduct by their sale and independent enjoyment of the properties. Separation in food and residence for a long time among the brothers of Hindu Family, independent transaction of property, separate possession and enjoyment of properties by themselves, no doubt, not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers during their life time. This Division Bench decision has been followed in Ganesh Sahu and Another Vs. Dwarika Sao and Others and Pata Sahu and Another Vs. Hiru Sahu and Others . As discussed above in the present case, there is no documentary evidence showing the previous partition alleged by the defendant. However, the conduct of the parties discussed above shows that the parties were separate in mess, residence and business and were enjoying the properties separately. Shambhu Ram even adopted Niranjan Lal. PW 10 admitted this fact. Therefore, I find that the defendant No. 1 has been able to prove the fact that there had already been partition between the two brothers Shambhu Ram and Shiv Prasad Ram. Thus the finding of the learned trial court on this point is hereby confirmed.

Point No. (b) - According to the plaintiffs Shambhu Ram adopted Niranjan Lal in the year 1936-37. Shambhu Ram died in the year or about the year 1938-39 and two years after his death Niranjan Lal also died. We have seen above while considering the point (a) many of the documents i.e. Ext. B series Ext. C which are from the year 1945 up to 1970 stands in the name of Niranjan Lal son of Shambhu Ram. If the plaintiffs'' case is believed that Niranjan Lal died two years after the death of Shambhu Ram i.e. in the year 40-41 then how these documents are standing in the name of a dead person. There is no explanation given by the plaintiffs. Therefore, the case pleaded by the plaintiffs cannot be accepted that Niranjan Lal died two years after the death of Shambhu Ram. Here it may be mentioned that adoption of Niranjan Lal is admitted. The only dispute is whether this Niranjan Lal is the defendant No. 1 or not. PW 10 has admitted this fact that Niranjan Lal is the alias name of Kashi Nath defendant No. 1. Moreover there were two cases before the Court. One is pleaded by the plaintiff and the second is pleaded by the defendants. The documentary evidences produced by the defendants shows that Niranjan Lal is still alive. The witness examined on behalf of the defendant No. 1, all have stated that Kashi Nath alias Niranjan Lal is the adopted son of Shambhu Ram. Therefore, mere bald statement of plaintiffs that Niranjan Lal died two years after the death of Shambhu Ram cannot be accepted. It appears that the plaintiff approached the case with uncleaned hand. I, therefore, find that Kashi Nath and Niranjan Lal are one and same person. In other words alias name of defendant No. 1 is Niranjan Lal who was adopted by Shambhu Ram. Thus, the finding of the learned court below on this point is hereby confirmed.

Point No. (C) - The plaintiffs'' case is that all the properties mentioned in the plaint are the joint family properties of the parties. Whereas the case of the defendant No. 10 that the properties mentioned in schedule of the written statement are the properties which have been acquired by the defendant No. 1 or is adopted father Shambhu Ram in his name. Learned counsel for the plaintiff submitted that the property covered under Ext. 2 the sale deed dated 31st July 1935 and the sale deed Ext. 2(i) dated 13.1.1929 cannot be the property of the defendant No. 1. The defendant himself admitted the fact that after some time after adoption Shambhu Ram died. He disclose his age on 9.12.1983 (DW 8) as 56 years. On calculation it appears that the adoption must have been taken in the year 1936 or 37 or it may be 1938. There is no contrary evidence that adoption took place prior to 1935. Moreover, Ext.2 is the sale deed dated 31.7.1935 which is in the name of Niranjan son of Vilash Ram. Had he been adopted in the year 1935 or prior to that he would have been described as Niranjan son of Shambhu. Therefore, the adoption took place after 1935. In such circumstances, the property covered under Ext.2 which is in the name of Niranjan cannot be said to be the self acquired property of Niranjan alias Kashi Nath, defendant No. 1. Likewise the property purchased through Ext.2/1 which is dated 13.1.1929 which is in the name of Vilash Ram. Admittedly, according to the defendant No. 1 no share could be given to him in the property of Vilash Ram. The settled law is also that after adoption he will not get any share in the property of original father and he will be entitled exclusively the property of his adopted father. Here therefore, the properties of Shambhu Ram either standing in his name or purchased by Shambhu Ram in the name of Ninajnan Lal cannot be the subject matter of partition as there had already been partition between the Shambhu Ram and Shiv Prasad Ram.

From perusal of the impugned judgment it appears that the learned court below has not given any specific finding regarding as to whether the property purchased by Ex.t2 and 2/i are liable for partition or not, therefore, it is hereby made clear that these properties are the properties of Vilash Ram and are available for partition. The defendant No. 1 has got no concern with the property of Ext.2 and 2/i. However, it has clearly been mentioned by the trial court that the property of Shambhu Ram and Niranjan Lal cannot be partitioned. I therefore, find that the learned court below has rightly found the same. Regarding Ext.2 and 2/I, I have clarified the matter above. The properties of these two sale deeds are available for partition.

In view of my above discussion and recording of findings, I find no merit in this first appeal. Accordingly, this first appeal is dismissed with the above clarification.