HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.644 of 1991 =========================================================== 1. Satendra Sharma, Son of Late Babu Gariban Singh. 2. Mostt Phulpati Kuer, Widow of Late Babu Gariban Singh. All resident of village-Supta, P.S.-Tekari, District-Gaya. ----Defendant-Appellant-Appellants. Versus 1. Bindeshwar Singh, Son of Krit Singh, deceased resident of village- Supta, P.S.- P.S.-Tekari, District-Gaya. 2. Lalita Devi, Widow of Satish Kumar, deceased resident of village- Supta, P.S.- Tekari, District-Gaya. 3. Sahjanand @ Putter, Son of Late Babu Gariban Singh, resident of village- Supta, P.S.-Tekari, District-Gaya. 4. Manju Devi, Daughter of Late Babu Gariban Singh, Wife of Mithilesh Singh, Village-Bara, P.S.-Masaurhi, District-Patna at present village- Supta, P.S.- Tekari, District-Gaya. 5. Vidya Devi, Daughter of late Gariban Singh, resident of village- Village-Bara, P.S.-Masaurhi, District-Patna at present village- Supta, P.S.-Tekari, District- Gaya. 6. Shushma Devi, Wife of Late Sanjeet Sharma. 7. Chunchun Kumar, Son of Late Sanjeet Sharma. 8. Chotu, Son of Late Sanjeet Sharma. 9. Rozy Kumari, daughter of Late Sanjeet Sharma. All resident of village-Supta, P.S.-Tekari, District-Gaya. Plaintiff-Respondetn-Respondents. =========================================================== Appearance : For the Appellant/s : Mr Binod Kumar Singh, Adv. Mr. SHILA SINGH, Adv. For the Respondent/s : Mr Raghiv Ahsan, Sr. Adv. Mr. S.R.C.PANDEY, Adv. Mr. Ramashish, Adv. Mr. Raghunandan Prasad Sinha, Adv. Mr. Anjan Chakraborty, Adv. Mr. Kr.Dhirendra Pratap Singh, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 18-03-2013 V.Nath, J. The defendants have filed this appeal against the judgment and decree of affirmance by the appellate court below upholding the decree directing them to vacate the suit house and holding the plaintiff to be entitled to recovery of possession of the suit house from the Patna High Court SA No.644 of 1991 dt.18-03-2013 2
Legal Reasoning
defendants. 2. There is no dispute to the fact that Krit Singh had two sons namely Bindeshwar Singh, who is plaintiff in the present suit, and Gariban Singh who was the father of defendant nos. 1 to 4 and the husband of defendant no.5. There is also no dispute that the suit property, which is a house, was originally the joint family property of the parties. However, it is the case of the plaintiff that Krit Singh, the father of the plaintiff and Gariban Singh (predecessor of the defendants), in view of continuous bickerings in between the families of his two sons, partitioned the joint family properties in presence of some Panches on 06.02.1975 and a memorandum of partition was also prepared on that date. It is the case of the plaintiff that this memorandum of partition was signed by Krit Singh, Bindeshwar Singh (the plaintiff) and Gariban Singh besides the Panches. It is further case of the plaintiff that the entire joint family properties were divided by their father between the plaintiff Bindeshwar Singh and Gariban Singh in equal shares, and their parents did not take any share rather they took 1.06 acres of land each from the shares allotted to the plaintiff Bindeshwar Singh and Gariban Singh and after their death the said property reverted back to the respective allottees. It is further case of the plaintiff that the suit house was exclusively allotted in the share of the plaintiff with further arrangement that Gariban Singh would reside Patna High Court SA No.644 of 1991 dt.18-03-2013 3 in the said house only for three years from 06.02.1975 upto 06.02.1978 and this fact was expressly mentioned in the memorandum of partition. The plaintiff has, however, alleged that after the death of Gariban Singh, the defendants who are his widow and sons have refused to vacate the suit house after the expiry of the period under arrangement, and therefore, the need for the suit has arisen. 3. The defendants contested the claim of the plaintiff and have denied the partition of the joint family properties as claimed by the plaintiff. The defendants have further alleged the memorandum of partition as forged and fabricated document and claimed that the suit house is ancestral house of the parties in which they have a right to reside. 4. The trial court, after considering the pleadings and evidence of the parties, returned the finding that there had been partition between the plaintiff and his brother Gariban Singh of the entire joint family properties on 06.02.1975 wherein the suit house was exclusively allotted to the share of the plaintiff Bindeshwar Singh, and his brother Gariban Singh was allowed to reside therein only for three years i.e. till 06.02.1978. Accordingly the suit was decreed granting the decree as prayed. In appeal by the defendants, the appellate court below concurred with the findings of the trial and dismissed the appeal by the impugned judgment and decree. Patna High Court SA No.644 of 1991 dt.18-03-2013 4 5. This second appeal has been admitted for hearing by order dated 03.12.1997 on the following substantial question of law: “Whether the Ext.6 being inadmissible piece of evidence, the court below was legally justified in considering other oral evidence.(See AIR 1968 SC 1299-Siromani Vs. Hemkumar)”.
Legal Reasoning
6. Mr Binod Kumar Singh, the learned counsel appearing for the appellants has submitted that both the courts below have committed error in law in accepting the deed (Ext.6) in evidence although the said document was inadmissible in evidence for want of registration as it was not a memorandum of partition but a document of partition. It has been urged that the claim of the plaintiff to have acquired title on the basis of partition as reflected from this deed (Ext.6) cannot be sustained in law and in that view of the matter, the courts below had no other option but to accept that the suit property was joint family properties in which the defendants had a right to reside. 7. Mr Raghiv Ahsan, the learned senior counsel for the respondents, has supported the impugned judgment and has submitted that the deed (Ext.6) cannot be discarded from consideration solely on the ground that it is not a registered document. It has been submitted that the appellants, although in the pleading, has alleged the said deed to be forged and fabricated document but have led no evidence in that regard. It has been further submitted that there are ample evidence on Patna High Court SA No.644 of 1991 dt.18-03-2013 5 record to show that the partition, effected by the father between his two sons, the plaintiff and Gariban Singh (predecessor of the defendants), had been accepted and acted upon and accordingly the mutation had been done and the dispositions of the allotted properties had been done by the parties of their allotted shares. It has thus been submitted that both the courts below have rightly refused the contention of the defendants to resile from the said partition and assert the jointness of the suit house. 8. It is not in dispute that Krit Singh had two sons namely Bindeshwar Singh (the plaintiff) and Gariban Singh (the predecessor of the defendants). It is the case of the plaintiff that due to continuous dispute among the brothers and their families, their father Krit Singh decided to partition the joint family properties among his two sons and accordingly, he effected the partition in which the suit house was exclusively allotted in the share of the plaintiff. The plaintiff has further stated that according to the agreement between the parties at the time of said partition, Gariban Singh was allowed to reside in the suit house for three years but after his death his descendants, who are the defendants, have refused to vacate the same. To the contrary, the case of the defendants is total denial of partition as claimed by the plaintiff. The defendants have come out with the case that the deed(Ext.6) is forged and fabricated document and have asserted that no partition had Patna High Court SA No.644 of 1991 dt.18-03-2013 6 taken place. It has been further asserted by the defendants that there was no such agreement on 06.02.1975 whereby their predecessor Gariban Singh had agreed to reside in the suit house only for three years. 9. In support of the partition effected on 06.02.1975, the plaintiff has adduced in evidence the deed dated 06.02.1975, marked as Ext.6 bearing the signature of the plaintiff Bindeshwar Singh and Gariban Singh as well as their father Krit Singh and the Panches. The plaintiff has claimed this deed (Ext.6) to be a memorandum of partition which had been effected between his two sons by the father Krit Singh. The perusal of this deed shows that the same had been executed by Krit Singh wherein he had stated that he had effected the partition between his two sons in presence of the Panches. Krit Singh had also stated that he had obtained the signature of his two sons and as well as the Panches on the deed. Further, the deed also contains the list of the properties, allotted by the father Krit Singh, in the share of his two sons Gariban Singh and Bindeshwar Singh. It has also been mentioned in the deed that Gariban Singh would reside in the house, which had been allotted to the share of Bindeshwar Singh, from 06.02.1975 to 06.02.1978 and thereafter he would vacate the house. 10. The plaintiff has further brought in evidence the certified copy of the order sheet of Mutation Case No.53/76-77 as Ext.10 Patna High Court SA No.644 of 1991 dt.18-03-2013 7 whereby the mutation of the name of the plaintiff has been allowed over the lands allotted to him in partition. It further appears from the record that the original records of the Mutation Case No.53/76-77 had also been called for during trial which contains a petition filed by the plaintiff Bindeshwar Singh for mutation of the land allotted in his share by partition on 06.02.1975. The plaintiff has also filed certified copy of the sale deed executed by the defendant no.5 Most Phulpati Kuer widow of Late Gariban Singh in favour of Ram Nandan Singh on 18.08.1980 whereby she had sold 8 decimal land of Plot No.1336 and 3 decimal land of Plot No. 1337. This sale deed has been marked as Ext.5 in the suit. The sale deed contains the recitals by the vendor Most Phulpati Kuer that there had been partition between the two brothers Bindeshwar Singh and Gariban Singh whereby Gariban Singh had been allotted share in the east and Bindeshwar Singh had been allotted share in the west of the lands subject matter of sale. The boundaries of the sold land as mentioned in the sale deed further disclose that in the western boundary the name of the plaintiff Bindeshwar Singh has been mentioned. The sale deed dated 13.12.1979 by Gariban Singh has been brought in evidence by the plaintiff and marked as Ext.5/A. In this sale deed, the vendor Gariban Singh has stated himself to be the sole and exclusive owner of the sold land which was 8 decimal of Plot No.1232. It would be appropriate here to take into notice the contents of the deed Patna High Court SA No.644 of 1991 dt.18-03-2013 8 (Ext.6) which show that the lands which had been sold by Gariban Singh by the sale deed (Ext.5/A) and by his widow defendant no.5 Most Phulpati Kuer by sale deed (Ext.5), had been allotted in the share of Gariban Singh. The plaintiffs have also filed Chaukidari receipt (Ext.1) and electric bills (Ext.9 Series) with regard to the suit house which are in his name. The witnesses examined on behalf of the plaintiff have also supported the case of the plaintiff that partition was effected by the father Krit Singh in between his two sons Bindeshwar Singh and Gariban Singh. 11. The defendants on the other hand although have initially asserted in the written statement that no partition has take place in the family and the deed (Ext.6) is forged and fabricated document but have led no evidence to substantiate the said allegation. The defendant no.1 Satendra Sharma has been examined as D.W.4 in the suit and in his deposition he has accepted that the deed (Ext.6) contains the signature of his father Gariban Singh, although he has qualified the same by stating that the signature was obtained without reading over the contents of the documents. However, he has also accepted that his mother had sold land after the partition on 06.02.1975. The D.W.1 Deopat Singh has also accepted in his deposition that Most Phulpati Kuer had sold the land which had been allotted in the share of Gariban Singh for the marriage of her daughter. Patna High Court SA No.644 of 1991 dt.18-03-2013 9 12. Both the courts below after the scrutiny of the evidence have come to the finding that the partition had been effected between the two brothers Bindeshwar Singh and Gariban Singh by their father Krit Singh and the deed (Ext.6) was also executed in that regard. It has also been held by both the courts below that the parties have accepted the said partition and have acted accordingly. The contention on behalf of the appellant is that the deed (Ext.6) is a deed for partition and not a memorandum of partition and it is not a registered document and therefore it was inadmissible in evidence. It is manifest from the deed (Ext.6) that it had been executed by Krit Singh who was the father of the plaintiff and Gariban Singh (the predecessor of the defendants) effecting partition between his two sons. It has also been stated in the deed that his both sons were not pulling on well and therefore he decided to partition the joint family properties between them. Obviously he as a father wanted his two sons to live peacefully and therefore decided to make the partition of the entire family properties between them. The right of a Hindu father, governed by Mitakshara law, to impose partition on his sons with or without their consent is well recognized as has been held by the Apex Court in the case of Kallyani Vs. Narayanan & Ors AIR 1980 SC 1173. Therefore the steps taken by Krit Singh for establishing peace and harmony between his two sons by dividing family member between them can more Patna High Court SA No.644 of 1991 dt.18-03-2013 10 appropriately be taken to be a family arrangement and be considered accordingly. In this regard it would be appropriate here to mention the observations by the Apex Court in the case of Ram Charan Das Vs. Girja Nandani Devi, AIR 1966 SC 323, as follows:- “… Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations…” 13. Similarly in the case of S. Shanmugam Pillai & Ors Vs. K. Shanmugam Pillai & Ors, 1973 (2)SCC 312, the Apex Court has observed as follows:- “…If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements…” 14. From the evidence on record it is apparent that the plaintiff had filed petition for mutation of his name over the lands allotted in his share in the partition dated 06.02.1975 and the said prayer was allowed and the name of the plaintiff was mutated. It is not the case of the defendants that they or their predecessor Gariban Singh ever raised any objection before the Revenue Authorities against the mutation of the Patna High Court SA No.644 of 1991 dt.18-03-2013 11 name of the plaintiff over the land which he claimed to have got in partition. To the contrary, Graiban Singh and his widow Phulpati Kuer (defendantno.5) had also transferred properties accepting the partition and allotment of the properties under sale in their share. These facts leave no room for doubt that the division of the family properties by the said partition had been fully effective between the parties thereto. Almost in similar facts and the issues, a three Judge Bench of the Apex Court in the case of Kale Vs. Deputy Director of Consolidation, 1976 (3)SCC 119 has laid down the principles as follows:- “24….This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same…” “38… Rebutting the arguments of the learned counsel for the appellants, Mr Sharma for the respondents contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute. In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the court of Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be Patna High Court SA No.644 of 1991 dt.18-03-2013 12 registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable, the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it…” (emphasis supplied) 15. The same view has been reiterated later on by the Apex Court in the case of Narendra Kante Vs. Anuradha Kante & Ors 2010 SAR(Civil)138 wherein the similar contention, as raised by the appellants in the present case, that the deed of family settlement was in fact a deed of partition and could not have been effected upon without being executed by all the co-sharers and being registered as provided for registration under Section 17 of the Registration Act, 1908, was rejected relying on the decision in Kale(Supra) and it has been laid down as follows:- “… While holding as above, their lordships also indicated that even if a family arrangement, which required registration was not registered, it would operate as a complete estoppel against the parties, which had taken advantage thereof…” 16. In the decision in the case of Siromani Vs Hemkumar, AIR 1968 SC 1299, which has been heavily relied on behalf of the appellants, the question that the family arrangement, even if not Patna High Court SA No.644 of 1991 dt.18-03-2013 13 registered, would operate as an estoppel between the parties did not fall for consideration before their Lordships and therefore the ratio of the said decision would not come to the succour of the appellants. 17. Aligning myself with the preponderant opinion of the Hon’ble Supreme Court in the later decisions, I hold that the partition by way of family arrangement was effected by the father Krit Singh between his two sons Binheshwar Singh and Gariban Singh and the said partition had been fully acted upon by the parties, and the defendants would be estopped from revoking or resiling from the same. The appellate court below therefore has rightly decided the said issue and has rightly come to the conclusion that Gariban Singh (the predecessor of the defendants) was allowed to stay in the suit house only for a limited period of three years which had already expired and defendants, who are claiming through Gariban Singh, are therefore liable to eviction. 18. In view of the aforesaid premised reasons, the substantial question of law, as formulated, is answered against the appellants. The appeal is accordingly dismissed and the impugned judgment and decree of the courts below are upheld. In the facts and circumstances of the case, there shall be no order as to cost. Nitesh/- (V. Nath, J)