Umesh Prasad Mehta v. Dropadi Devi & Ors.

suit, the plaintiff has filed this appeal. The T.S. No. 17 of 1988 was filed by the plaintiff for partition of his 1/5th share in the properties described in the schedule of the plaint. Undisputed facts are that the defendant no. 1 is the father of the plaintiff as well as the defendant nos. 3 and 4. This defendant no. 1 has married twice and from his first wife he has got one son who has been impleaded as defendant no. 4 in the suit. His two sons from the second marriage are the plaintiff and the defendant no. 3 in the suit. The second wife of the defendant no. 1 has been impleaded as defendant no. 2 in the suit. The plaintiff has come out with the case that the suit properties are the joint family properties of the plaintiff and the defendants in which he has got unity of title and jointness of possession. The plaintiff has sought for partition of his share in the suit properties. The defendant nos. 1 to 3 by filing joint written statement have supported the case of the plaintiff and have further asserted that the property of village Madhubani is the self acquired property of the defendant no. 1 and therefore rightly not included in the suit properties. They have also asserted that the defendant no. 1 has transferred 3 bighas and odd out of suit plot no. 365 and 366 of village Patna High Court FA No.503 of 1991 dt.10-12-2013 3 Bishunpur Patti as karta for the legal necessity of the joint family and therefore those transferred properties have rightly not been made subject matter of partition in the suit. The suit has been contested, however, by the defendant no. 4 who has filed his separate written statement. It is the assertions of the defendant no. 4 that the joint family properties lying in Madhubani district and in other districts, described in the schedule of the written statement have been wrongly left out by the plaintiff. It is also the case of the contesting defendant that the defendant no. 1 has illegally alienated valuable joint family properties but those properties have also not been included in the suit properties and the transferees have not been impleaded as parties in the suit. It has, therefore, been asserted that the suit is barred for partial partition and cannot be decreed. This defendant has also filed additional written statement elaborating the facts stated in the written statement with further assertion that the dispute over the claim of self acquisition of the land in village Madhubani has been finally settled with the consent decree passed in T.S. No. 295 of 1972 wherein the lands of village Madhubani and Chandi has been accepted to be the joint family property. It has also been stated that after the partition in T.S. No. 295 of 1972, the defendant no. 1 being the karta of his branch has been managing all the properties which has been allotted in his share in the Patna High Court FA No.503 of 1991 dt.10-12-2013 4 above compromise decree without any distinction of joint family or self acquired property. It has also been stated that the defendant no. 1 has illegally sold the joint family lands of village Deori, Chandi, Ramganj and Kusthan as well as village Bishunpur Patti without any legal necessity and benefit of the family and has thereby made wrongful gains. In view of the rival pleadings of the parties, the learned court below framed altogether 8 issues out of which the issue nos. 3, 4, 5, 6 and 7 have been tried as material issues. Those issues are as follows:- Issue no. 3:- Is the suit land of mauja Madhubani bearing holding no. 97/93 in ward no. 13 old (new ward no. 8) appertaining to plot no. 227/P measuring an area of 1 acre 3 kathas 5 dhurs the joint family property or the personal property of the defendant no. 1? Issue no. 4:-Does the suit suffers from the defect of necessary parties and from the principle of partial partition? Issue no. 5:-Is the property given in the schedule of the W.S. filed on behalf of the defendant no. 4 liable to be partitioned or has the same been already transferred to different persons as stated by the defendant nos. 1 to 3? Issue no. 6:-Is the sale of suit plot nos. 365 and 366 effected by the defendant no. 1 during the pendency of the suit through Patna High Court FA No.503 of 1991 dt.10-12-2013 5 registered sale deed for legal necessity and does it bind the parties to the suit and is the same liable to partition between the parties? Issue no. 7:- Whether the suit land of mauja Madhubani become the joint family property for the reason that the same was made suit land in Title Suit (partition) no. 295/72? After scrutinizing the evidence of the parties in the light of the pleadings, the learned court below has come to the finding that the property in village Madhubani is the joint family property of the parties to the suit and accordingly the issue no. 3 has been decided in favour of the defendant no. 4. It has been further held by the learned court below that the alienation made by the defendant no. 1 during the pendency of the suit had not been made for legal necessity and it is not binding on the parties to the suit. Accordingly, the issue nos. 5 and 6 has also been decided in favour of the defendant no. 4. The trial court thereafter has come to the finding that the suit is barred for partial partition and also suffers from defect of parties as the alienees from the defendant no. 1 who are necessary parties have not been impleaded as parties. Accordingly, the suit has been dismissed by the impugned judgment and decree. The learned counsel appearing for the appellant and also for the defendant-respondents who have supported the plaintiff, have appeared and made their submissions in support of this appeal. Patna High Court FA No.503 of 1991 dt.10-12-2013 6 Nobody has appeared on behalf of the defendant-respondent no. 4 when this appeal has been called out for hearing. The learned counsel for the appellant while assailing the impugned judgment and decree has submitted that the learned court below has not correctly appreciated the evidence on behalf of the plaintiff and has also ignored the evidence led on behalf of the contesting defendant no. 4 which have in substance supported the case of the plaintiff. It has been urged that the averments made in the plaint (Ext. B) of the earlier T.S. No. 295 of 1972 between the defendant no. 1 and his brothers clearly demonstrate that the property in village Madhubani is the self acquired property of the defendant no. 1. Relying on the compromise decree (Ext. A) passed in the said suit, the learned counsel has further submitted that the defendant no. 1 who was defendant no. 2 in the T.S. No. 295 of 1972 has been allotted excess area in the compromise decree which included the land of village Madhubani only because the parties to that suit accepted the said property to be the self acquired property of the defendant no. 1. It has also been argued that admittedly the property in village Madhubani are valuable properties but the brothers of the defendant no. 1 did not take any share in the same is a fact sufficiently leading to the inference that the suit property has been accepted to be the self acquired property of the defendant no. 1. The learned counsel for the Patna High Court FA No.503 of 1991 dt.10-12-2013 7 appellant has also placed the depositions of the witnesses examined on behalf of the plaintiff and the contesting defendant to bolster his submission that the property in village Madhubani is the self acquired property of the defendant no. 1. On the basis of these submissions, the learned counsel has prayed that this appeal be allowed and the suit for partition filed by the plaintiff-appellant be decreed. In view of the submissions made on behalf of the appellant, the following points emerge for determination in this appeal:- (i) Whether the properties of village Madhubani as mentioned in the written statement of the defendant no. 4 are the joint family properties of the parties to the suit and the suit suffers from vice of partial partition due to non-inclusion of the said property as subject matter of partition? (ii) Whether the alienations of the suit properties made by the defendant no. 1 have been made for legal necessity and as such those alienations would be binding on the parties to the suit? Patna High Court FA No.503 of 1991 dt.10-12-2013 8 (iii) Whether the impugned judgment and decree is sustainable in law and facts? For convenience all the points are taken up together for determination. Admittedly the plaintiff and the defendant no. 3 are the two sons of the defendant no. 1 from his second marriage. The defendant no. 4 is the son of the defendant no. 1 from his first wife. The defendant no. 2 is the second wife of the defendant no. 1. The suit for partition filed by the plaintiff has been contested only by the defendant no. 4 on the ground that the suit cannot proceed unless the property of Village Madhubani mentioned in detail in the written statement is also included as subject matter of partition and further the lands alienated by the defendant no. 1 be also included in the suit properties with the transferees as parties to the suit as those transfers have been made without legal necessity. The plaintiff and the defendant nos. 1 to 3 however have asserted that the property in village-Madhubani is the self acquired property of the defendant no. 1 which cannot be the subject matter of partition. They have further also asserted that the alienations of the joint family properties have been made by the defendant no. 1 as Karta for legal necessity and therefore those alienated properties cannot be made subject matter of the suit and the transferees are therefore not necessary parties. Patna High Court FA No.503 of 1991 dt.10-12-2013 9 From the averments in the pleadings as well as from the submissions made on behalf of the appellant, it is pellucid that the defendant no. 1 is the karta of his family consisting of his sons who are the plaintiff, defendant no. 3 and defendant no. 4 besides his second wife who is defendant no. 2. The land in village Madhubani has been acquired in the name of the defendant no. 1. The learned counsel for the appellant has accepted that the joint family of the defendant no. 1 has sufficient property the income of which could have formed nucleus for acquisition of the said property. Even otherwise also as the defendant no. 1 is the karta of his family, the burden lies to him to establish the fact of self acquisition of some property in his name during his kartaship in view of the law laid down by the Apex Court in the case of Mallesappa Bandepp Desai Vs. Desai Mallappa alias Mallesappa A.I.R. 1961 S.C. 1268. The contesting defendant has brought in evidence the sale deeds (Ext. 1 to 1/4) executed by the defendant no. 1 by which he sold away the joint family property. Ext. I/1 is the sale deed dated 03.09.1956 for Rs. 1000/-; Ext. I/2 is the sale deed dated 26.10.1956 for Rs. 350/-; Ext. I/3 is the sale deed dated 31.10.1956 for Rs. 375/- and Ext. I/4 is the sale deed dated 13.11.1956 for Rs. 600/-. The land in village Madhubani has been acquired through Ext. D which is the sale deed dated 26.03.1957 executed in favour of the defendant no. 1 for one Patna High Court FA No.503 of 1991 dt.10-12-2013 10 acre of land out of plot no. 227 for a consideration of Rs. 2500/-. The proximity in time of the transfers by sale deeds (Ext. I series) and the purchase by sale deed (Ext. D) is glaring. The defendant no. 1 was definitely in his hand the sale proceeds of the transfers made through sale deeds (Ext. I series). There is no evidence on behalf of the defendant no. 1 or for that matter the plaintiff also to show that the sale proceeds of the transactions witnessed by sale deeds (Ext. 1 series) have been utilized for the benefit of the joint family in any other manner. There is also no evidence that the consideration money of Rs. 2500/- for the purchase of the property by sale deed (Ext. D) was paid out of the self earned money of the defendant no. 1. The burden in this regard to prove that the acquisition by sale deed (Ext. D) has been made without the add of the joint family fund was heavy on the defendant no. 1 but he has failed to discharge the same by leading cogent evidence in this regard. Much reliance has been placed by the learned counsel for the appellant on the compromise decree of T.S. No. 295 of 1972. This suit was filed by the brother of the defendant no. 1 for partition of the joint family property. The contesting defendant no. 4 was not a party to that suit. From the perusal of the plaint (Ext. B) of the said suit, it is apparent that the lands of village Madhubani purchased in the name of the defendant no. 1 by sale deed (Ext. D) was not initially included as Patna High Court FA No.503 of 1991 dt.10-12-2013 11 subject matter of that suit but subsequently by petition dated

06.01.1973, the said property of village Madhubani was made subject matter of the suit. In the said petition (Ext. C), the plaintiff of that suit stated that the compromise had been arrived at between the parties with the intervention of their mother and according to her wish, some more properties which were either ancestral or self acquired properties of the parties were required to be added. The prayer made in the said petition was allowed and the properties were allowed to be added by the learned court below. Accordingly, 1 acre 3 katha and 4 dhur of land of plot no. 227/P of Madhubani was also included as suit properties in the said suit. Admittedly, the present appellant was not a party in the said T.S. No. 295 of 1972 and the averments made in the compromise petition would not be binding on him. Moreover, by sale deed (Ext. D), it is apparent that only 1 acre land out of plot no. 227 has been purchased whereas in accordance with the petition (Ext. C), it appears that total 1 acre 3 katha 5 dhur land of plot no. 227/P of village Madhubani had been included as subject matter of partition in T.S. No. 295 of 1972. From the compromise petition (Ext. A) of T.S. No. 295 of 1972, it appears that 1 are 3 katha and 5 dhur of land of village Madhubani has been allotted in the share of the defendant no.

1. However, there is no averment in the compromise petition that this property of village Madhubani allotted in the share of the defendant Patna High Court FA No.503 of 1991 dt.10-12-2013 12 no. 1 Anandi Pd. Mehta was allotted to him because it was his self acquired property and no specific reason has been assigned in the compromise petition for allotment of those properties in the share of the defendant no. 1. In this view of the matter, also the claim of the defendant no. 1 that the property of village Madhubani (plot no. 227/P) is his self acquired property is not substantiated. The non- inclusion of the property as subject matter of the present suit makes the claim of the plaintiff for partition vitiated for partial partition. The learned court below, after appreciation of evidence, has rightly held that the property of village Madhubani, mentioned in the schedule of the written statement by the defendant no. 4, is joint family property of the parties and the suit suffers from the vice of partial partition because of the non-inclusion of the same as suit property. The contesting defendant no. 4 has specifically mentioned in his written statement that the defendant no. 1 has been mismanaging and dissipating the joint family properties for his own gains and benefits. He has further mentioned in paragraph-11 of his written statement specifying that some properties had been sold for consideration of Rs. 96,000/- and an orchard had been sold for Rs. 16,000/-. It has also been averred that the purchasers of those properties have not been made parties in the suit. Those alienations by the defendant no. 1 of the lands of village- Deori, Chandi, Ramganj Patna High Court FA No.503 of 1991 dt.10-12-2013 13 and Kusthan have also been assailed on the ground of absence of legal necessity for the disposition of those properties. Although, the defendant no. 1 has asserted that these alienations have been made for legal necessity but no cogent evidence of existence of legal necessity has been adduced. It has also been admitted that the suit plot no. 365 and 366 had also been alienated during the pendency of the suit by the defendant no. 1 and the said alienations have also been claimed to have been made for legal necessity. The plaintiff examined as P.W.-2 in his deposition has stated that the sale of those properties had been made by the defendant no. 1 for payment to the creditors and also to meet the expenses for his treatment. However, no detail of the dues of the creditors and the expenses in the treatment has been given and even the quantum of the sale proceeds has also not been mentioned. In view of the specific assertion of the defendant no. 1 that heavy amount of Rs. 96,000/- and Rs. 16,000/- had been received by the defendant no. 1 as sale proceeds of those joint family properties, it was incumbent upon the defendant no. 1 to establish by cogent evidence, the existence of the legal necessity and the appropriation of the sale proceeds for meeting the legal necessity but he has failed to do so by adducing evidence in that regard. The learned court below has rightly held that the properties mentioned in the written statement by the contesting defendant no. 4 are also the joint family properties Patna High Court FA No.503 of 1991 dt.10-12-2013 14 and were required to have been included as suit properties. Further, it has also been rightly held that the alienation of the two plots i.e. plot no. 365 and 366 during the pendency of the suit will not be binding on the defendant no. 4 in view of the principle of lis pendence and also in absence of the proof of legal necessity for such transfers. In view of the aforesaid reasons and discussions, I find and hold that the properties mentioned in the schedule of the written statement by the defendant no. 4 are also the joint family properties and the suit suffers from the vice of partial partition as the plaintiff has omitted to include those properties as subject matter of partition in the suit. It is also held that the alienations made by the defendant no. 1 of the properties mentioned in the schedule of the written statement of the defendant no. 4 and also of the two plots i.e. plot no. 365 and 366 have been made without legal necessity and those alienations will not be binding on the defendant no. 4. The suit, therefore, has rightly been held to be not maintainable and I do not find any illegality in the impugned judgment passed by the learned court below. Accordingly, all the points are decided against the appellant. In result, this appeal is dismissed and the judgment and decree passed by the learned court below is affirmed. Devendra/- (V. Nath, J)