Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.447 of 1979 the Against Judgment and Decree dated 31.03.1979 passed by 3rd Addl. Subordinate Judge, Siwan in title suit No.85 of 1974 / 23 of 1978. ================================================== Mundrika Singh Bharat Singh & Ors ..........Plaintiff-Appellant/s Versus ............Defendants-Respondent/s ================================================== Appearance : For the Appellant/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Rakesh Chandra, Advocate Mr. Ranjan Kumar Dubey, Advocate Ms. Sangeeta Sharma, Advocate with him For the Respondent/s : Mr. Sudhir Ranjan, Advocate. ================================================== Dated : 13thday of February, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T 1. The plaintiff had filed this First Appeal against the Judgment and Decree dated 31st March, 1979 passed by the learned 3rd Addl. Subordinate Judge, Siwan in title suit No.85 of 1974 / 23 of 1978 whereby the trial Court had dismissed the plaintiff’s suit for partition. 2 Patna High Court FA No.447 of 1979 dt.13-02-2013 2 / 15 2. The plaintiff appellant filed the aforesaid suit for partition with respect to the suit property claiming 1/14th share in the Schedule I, 3/14th share in Schedule II & III and 3/28th share in Schedule IV of the plaint. 3. The plaintiff’s claimed the aforesaid relief of partition to the extent of his share stated above alleging that the common ancestor Chathu Mahto had 3 sons namely, Kanhai Mahto, Churaman Mahto and Mahangu Mahto. These 3 brothers were recorded in R.S. Khatiyan. Churaman Mahto died in the year 1931 issueless. Kanhai Mahto died in the year 1933
Legal Reasoning
leaving behind his son defendant No.3 Harnandan Mahto. The 3rd son Mahangu Mahto died in the year 1935 leaving behind two sons, namely, Dahari Singh and Nathuni Singh. Dahari Singh is the defendant No.2. Nathuni Singh had got two wives, namely, Sanichari and Biranjia. Bharat Singh is the son of Sanichari. Mostt. Biranjia defendant No.4 is mother of plaintiff Mundrika Singh. Nathuni Singh died in the year 1967 in the state of jointness with his sons. The two branches namely, Kanhai and Churaman partitioned. The Schedule II property has not been partitioned between the plaintiff and defendant No.1 and 3. There was regular quarreling, therefore, to avoid the quarrel, Mahangu Mahto and Nathuni Mahto separated between themselves in the year 1923 although their properties were not partitioned by metes and bonds. Churaman Mahto was issueless as such wife of Nathuni Mahto was cooking food for Churaman Mahto. Therefore, being pleased with his service, Churaman Mahto executed a deed of gift in respect of his entire properties in favour of Harnandan Singh and Nathuni Singh half and half on 2.9.1929. The donees accepted the gift and came in possession of the gifted property. The share of Churaman Mahto was 1/3rd. In the partition, he had got 10 to 11 Katha 3 Patna High Court FA No.447 of 1979 dt.13-02-2013 3 / 15 less land as the lands were of good quality. Since he was residing with Nathuni, no share was given to him in homestead land so the entire homestead land was allotted in the share of Harnandan Singh and branch of Mahangu which is described in Schedule IV of the plaint. The further case is that Nathuni had acquired some land in the states of separation which is his self-acquired property mentioned in Schedule III of the plaint. 4. The defendant No.4 is Biranjia, the mother of the plaintiff and the daughter of Nathuni are defendants 1 series who were impleaded on 24.01.1979. The defendant No.1 to 3 filed joint written statement and likewise the defendant No.4 series, daughters of Nathuni filed separate written statement. The main contesting defendants are defendant No.1 to 3. According to them, there is no unity of title and possession. Plaintiff is not the son of Nathuni Singh. Biranjia is not the wife of Nathuni Singh as such neither Biranjia nor plaintiff has got any concern with the suit property. According to the defendants, Nathuni had only one wife namely, Sanichari from whom he has got the son Bharat Singh. The defendant No.1(a) to 1(d) are the daughters of Nathuni Singh through Sanichari. Nathuni Singh died on 27.9.1966 leaving his widow Sanichari, defendant No.1 and 4 daughters, defendant No.1(a) to 1(d). Sanichari also died on 2.1.1975. The mother of the plaintiff, namely, Biranjia is the wife of Bhikham Singh and plaintiff being the son of Bhikham is full brother of Chandrika. The further defence is that Churaman Mahto died on 20thJanuary, 1946 leaving behind his two daughters. Mahangu and Nathuni never separated rather they were leaving jointly. Churaman Mahto executed a deed of gift in respect of his share in the property in favour of both the branches, Kanhai Mahto and Mahangu Mahto half and half and 4 Patna High Court FA No.447 of 1979 dt.13-02-2013 4 / 15 each branch came in possession half and half. The defendant No.1 and 2 are in possession of half of gifted property and defendant No.3 is in possession of other half. Some of the property remained with Churaman Mahto who subsequently gifted the same to defendant No.2, Dahari Singh. 5. The defendant No.1(a) to 1(d) who are the daughters of Nathuni through Shanichari also filed contesting written statement in the same line as that of defendant No.1 to 3. 6. The defendant No.4, Biranjia filed written statement supporting the case of the plaintiff. According to her Nathuni Singh married her in sagai form. She admitted that earlier she was married with Bhikham from where she got son Chandrika. Bhikham Singh was addicted to liquor and he was man of bad character. The defendant No.4 was protesting him, therefore he turned herout of his hosue and he married with another women 35 years ago. At that time, the defendant No.4 had his son Chandrika in her lap, therefore, she married with Nathuni in sagai form. Mundrika was born out of this wedlock from Nathuni Singh. At the time of marriage, Shanichari was alive. Nathuni Singh died in the year 1967. On the basis of the above pleadings of the parties, the trial Court framed the following issues :- (i) (ii) (iii) (iv) (v) Whether the suit as framed is maintainable? Whether the plaintiff has got a valid cause of action for the suit? Whether the suit properties have been properly valued and Court fee paid is sufficient? Is the suit barred by the principles of estopple acquiescence and rejudicate? Whether the plaintiff Mundrika Singh is the son of Nathuni Singh and whether the defendant No.4, Mt. Biranjia is the wife of Nathuni Singh. 5 Patna High Court FA No.447 of 1979 dt.13-02-2013 5 / 15 (vi) (vii) Whether there is unity of title and unity of possession with regard to the suit properties between the parties? Is the plaintiff entitled to the reliefs sought for and if so to what extent? 7. After trial, the lower Court recorded the finding that the plaintiff is not the son of Nathuni through Biranjia and there is no unity of title and possession between the parties. Accordingly, the partition suit was dismissed. 8.
Legal Reasoning
The learned senior counsel, Mr. S.S. Dwivedi, appearing on behalf of the appellant submitted that the lower Court has not considered the oral as well as documentary evidences in their right perspective and wrongly rejected the documentary evidences. Although the documents are public documents produced by the plaintiff-appellant, the lower Court wrongly discarded the Pariwarik Pustika and the voter list on the ground that the author had not been examined. The zerpeshgi deeds were filed with notes of redemption but the lower Court discarded the said zerpeshgi deeds on surmises and conjectures. According to the learned counsel, the possession of these zerpeshgi deeds proves that the plaintiff was the son of Nathuni Singh and was in possession of the property otherwise how the plaintiff came in possession of the very old zerpeshgi deeds. This aspect of the matter has not been considered by the lower Court and the lower Court also wrongly discarded the entry in the school admission register of the year 1950 on surmises and conjectures only. The lower Court also has wrongly drawn adverse inferences against the plaintiff for not getting the signature of Nathuni Singh in the school admission register compared. The onus was on the defendant to prove that in fact it is not the signature of Nathuni. Moreover, this entry was made in the year 1950 when there was no dispute 6 Patna High Court FA No.447 of 1979 dt.13-02-2013 6 / 15 between the parties. The learned counsel further submitted that the lower Court has wrongly held that since there was no divorce between Biranjiya and Bhikham, the story of re-marriage is falsified. According to the learned counsel, the concept of divorce and remarriage came only after enactment of Hindu Marriage Act, 1955. Prior to this Act, there was no codified act regarding divorce and remarriage. Everything was being done by the customs prevalent in the village / community. It is specific case of the plaintiff that the mother of the plaintiff Biranjiya was driven out by her former husband Bhikham, therefore, she remarried with Nathuni in sagai form. It is not denied by the defendants that there is no custom existing either in the caste or in the village. The only denial is that Biranjiya was not married with Nathuni. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff’s suit be decreed. 9. On the other hand, the learned counsel, Mr. Sudhir Ranjan, appearing on behalf of the respondents submitted that the trial Court has considered the evidences available on record and then recorded the finding that Biranjiya was not married with Nathuni rather she was wife of Bhikham. The onus was on the plaintiff to prove that Biranjiya was divorced by her husband Bhikham and after divorce only she married with Nathuni. If there was no divorce then she could not have married the second husband as such the marriage if any, was void marriage. Moreover, there is no reliable evidence to show that in fact the mother of plaintiff, Biranjiya was married with Nathuni. The learned counsel further submitted that at the time of marriage, it is admitted by the Biranjiya herself in the written statement that the wife of Nathuni, namely, Sanichari was alive, 7 Patna High Court FA No.447 of 1979 dt.13-02-2013 7 / 15 therefore, also on this ground, the marriage was void. On these grounds, the learned counsel submitted that the impugned Judgment and Decree are legal and cannot be interfered with. 10. In view of the above contentions of the parties, the points arises for consideration in this appeal is as to whether the plaintiff has been able to prove marriage of Biranjia with Nathuni in sagai form and he is son of Nathuni through Biranjiya and whether there is unity of title and possession between the parties or whether the defendants have been able to prove that the plaintiff is son of Bhikham through Biranjiya and Biranjiya was not married with Nathuni and whether the impugned Judgment and Decree are sustainable in the eye of law. 11. The specific case of the plaintiff is that there was partition between the 3 brothers and Churaman Mahto gifted all his property to Nathuni Singh and Harnandan Singh half and half who came in possession of the same. Nathuni Singh had two wives, namely, Sanichiri and Biranjiya. The defendant No.1 is the son through Sanichari whereas plaintiff is the son through Biranjiya. There has been no partition between the parties. On the contrary, according to the defendants, plaintiff is not the son of Nathuni Singh. Therefore, neither Biranjiya nor plaintiff had got any concern with the suit property. In support of their respective cases, the parties have adduced evidence oral as well as documentary. Prior to discussing the evidences on the point of parentage of plaintiff, it may be mentioned here that in the case of Jinia Keotin Vs. Kumar Silen 2003 (1) Supreme 441, the Supreme Court has held that polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effect on society came to be put to an end by the Hindu Marriage Act, 8 Patna High Court FA No.447 of 1979 dt.13-02-2013 8 / 15 1955. In view of this decision, it is clear that prior to this Hindu Marriage Act, polygamy was prevalent in the Hindu society. Article 430 of the Hindu Law by Mulla lays down that a Hindu may marry any number of wife although he has a wife or wives living, except in those states in which anti bigamy Act have been passed. Article 441 of the Hindu Law by Mulla says that divorce is not known to the general Hindu law. The reason is that a marriage from the Hindu point of view creates indissoluble tie between the husband and the wife. Neither party, therefore, to a marriage can divorce the other unless divorce is allowed by custom. 12. In the present case it is the pleading of Biranjiya defendant No.4 that she was driven out by her former husband Bhikham Singh. At that time, she had a son Chandrika in her lap. Therefore, she married with Nathuni in sagai form. The only point, therefore, is whether Biranjiya was married with Nathuni in sagari form or not and whether the plaintiff is son of Nathuni through Biranjiya. This was the point in issue between the parties which has been decided by the Courts below also. 13. Now, let us consider the evidences regarding parentage of plaintiff. He claimed that he is the son of Nathuni. P.W.3 claimed himself to be the teacher of school. He stated that the name of father of Mundrika Singh is Nathuni Singh. In 1950 in the school Nathuni had gone to get his son Mundrika Singh admitted. He had produced school admission register. He has further stated that in his presence at serial No.186, Nathuni Singh had singed and the entry No.186 is in the name of plaintiff. P.W.4 has proved the Pariwarik Pushtika. P.W.8 has stated that he had seen Nathuni Singh who had two wives. The name of first wife was Sanichari and the name of second wife was Biranjiya. From Biranjiya Nathuni had a son 9 Patna High Court FA No.447 of 1979 dt.13-02-2013 9 / 15 named Mundrika. Mundrika was calling Nathuni Singh as ‘Babuji’ and Nathuni was calling him as son. The evidence of P.W.14, 15, 18 and 19 are in the same line. P.W.16 is Pandit and P.W.22 is the plaintiff himself. Therefore, the evidences of these witnesses are in terms of Section -50 of the Indian Evidence Act and in view of the decision of the Apex Court in the case of Dolgobinda Paricha Vs. Nimai Charan Misra A.I.R. 1959 SC 914, there are evidences which are admissible because either they are neighbor or the co-villagers who had got special knowledge about the relationship of plaintiff with Nathuni Singh. 14. D.W.1 has been examined on behalf of the Biranjiya defendant No.4 who had fully supported the case of Biranjiya to the effect that Biranjiya was driven out by her earlier husband, Bhikham Singh and thereafter Biranjiya married with Nathuni Singh. D.W.2 is Biranjiya Devi herself. She has also fully supported the case. 15. D.W.1 of contesting defendant has stated that Biranjiya is the wife of Bhikham and plaintiff is the son of Bhikham Singh. Such is the evidence of D.W.4, 7 11 and others witnesses. None of the witnesses examined on behalf of the defendant have expressed their special means of knowledge regarding the son ship of plaintiff with Bhikham. In other words, it can be said that their evidence to the effect that plaintiff is not the son of Nathuni Singh is concerned, it is only in negative form. Likewise their evidence to the effect that Biranjiya was not married with Nathuni Singh is also in negative form. So far the evidence of the witnesses to the effect that the plaintiff is the son of Bhikham Singh is concerned, their evidence are not in terms of Section 50 of the Evidence Act. P.W.24 is the son of Bhikham Singh. He has clearly stated that plaintiff is the son of Nathuni 10 Patna High Court FA No.447 of 1979 dt.13-02-2013 10 / 15 Singh as his mother Biranjiya later on married with Nathuni when Bhikham Singh turned her out of his house. This witness is brother of Mundrika the plaintiff. It appears that the trial Court although considered the evidence of the witnesses examined on behalf of the plaintiff but disbelieved them on the ground that there is contradiction in the evidence of these witnesses on the point of year of death of first wife Sanichari. The plaintiff’s case has been disbelieved on other ground that Biranjiya, D.W.2 herself has stated that she deserted her former husband Bhikham Singh which is against her case pleaded in the written statement. In my opinion on this ground alone, the entire evidence of Biranjiya cannot be disbelieved. She pleaded that she was driven out so she married with Nathuni. In her evidence in cross- examination, she stated that she left her husband so in my opinion, it makes no difference and the difference, if any, is not so vital so as to disbelieved the case of Biranjiya that she married with Nathuni in sagai form. It further appears that the lower Court has not considered the evidences of the defendants witnesses in the light of Section 50 of the Indian Evidence Act. It further appears that the trial Court considered only Article 431 of the Hindu Law by Mulla which provides that a woman cannot marry another man while her husband is alive except where her marriage has been dissolved by divorce. On this point, the lower Court observed that there was no divorce between Biranjiya and Bhikham admittedly. Therefore, the marriage of Biranjiya with Nathuni will be void. So far this observation of the Court below is concerned, it may be mentioned here that the trial Court did not consider Article 441 of the Hindu Marriage Act. According to this provision earlier, the divorce were being done by custom only. Here the specific case of the plaintiff and defendant No.4 that 11 Patna High Court FA No.447 of 1979 dt.13-02-2013 11 / 15 Bhikham Singh had driven out of her out the house and Bhikham married second wife. Thereafter, Biranjiya married in sagai form with Nathuni. This fact pleaded by the plaintiff and supported in the evidence has only been denied by the defendants. There is no case made out in the written statement that because there was no divorce by Bhikham or by Biranjiya, the marriage between Biranjiya and Nathuni became void. The only point raised by the defendant is that Biranjiya is the wife of Bhikham and never married with Nathuni. Had there been any defence regarding divorce or void marriage, the matter could have been explained by the plaintiff. Moreover according to Article 431, a woman cannot marry second husband while her first husband is alive except her marriage has been dissolved by divorce. Article 441 speaks about divorce by custom. The plaintiff and defendant No.4 clearly pleaded that Bhikham Singh driven her out and, therefore, she married with Nathuni. The defendants did not deny that there is no such customs prevalent in the locality or in the caste. Whether driven out by Bhikham Singh will amount to divorce or not has also not been disputed by the defendants. The only fact which was denied by them is that she was not married with Nathuni. 16. So far the documentary evidences are concurred, the plaintiff has produced ‘4’ Jarpeshgi deeds which have been marked ext. ‘1’ series and the endorsement of redemption have been marked as ext. ‘4’ series. The learned counsel for the appellant submitted that these Jarpeshgi deeds were executed by Nathuni with respect to his property and the palitnfif redeemed the same. If plaintiff was not the son of Nathuni how this very old documents came in possession of the plaintiff and how he redeemed the said lands of Nathuni. So far this submission of the learned counsel for the 12 Patna High Court FA No.447 of 1979 dt.13-02-2013 12 / 15 appellant is concerned, it may be mentioned here that only explanation has been given by the defendants that the Jarpeshgidars went in collusion with the plaintiffs. I failed to understand that if the plaintiff has no concern with the suit property, i.e., property of Nathuni why he will redeem the property and the defendants will not take any step. The trial Court appears to have swed away by the argument of the defendants and recorded a finding that these Jarpeshgi deeds were said to have been redeemed fraudulently. So far this finding is concerned, in my opinion, it is neither here nor there. It is not the case of the defendants either in the evidence or in the pleading that the plaintiff fraudulently got the Jarpeshgi redeemed and came in possession of the property. At the time of argument, this defence was putforth. No evidence has been adduced to show that how Jarpeshgi were fraudulently redeemed. In my opinion, therefore, the observation of the trial Court regarding these Jarpeshgi are not acceptable. The facts remains that Nathuni has executed these Jarpeshgi deeds and the plaintiff redeemed the same on payment and came in possession. If he was the son of Bhikham how he would have even fraudulently redeemed the property and the defendant would have left the same without taking any action. 17. Ext. 5 is the transfer certificate wherein the father’s name has been mentioned as Nathuni. This transfer certificate shows that father’s name of plaintiff has been mentioned as Nathuni. This transfer certificate has been issued on the basis of admission register ext.‘3’. This admission register ext.‘3’ is entry No.186 which shows that in the year 1950, the plaintiff was admitted in the school and Nathuni Singh was shown as his father. Nathuni Singh also had signed the register as father of Mundrika 13 Patna High Court FA No.447 of 1979 dt.13-02-2013 13 / 15 Singh. So far this entry is concerned, the only defence is that it is fraudulent entry. It may be mentioned here that this entry was made in the year 1950 when there was no dispute between the parties. Nathuni Singh himself signed the register. The original register was produced before the Court. What type of fraudulent act was committed by whom and on whom has not been stated by the defendants. The trial Court recorded that the plaintiff did not take any step to get the signature of Nathuni compared with ext.‘3’ which are the admitted signature. So far this observation of the trial Court is concerned, it may be mentioned here that the school register had been produced which is of the year 1950. This register is being maintained in ordinary course by the school and, therefore, it will be presumed to be valid entry unless the contrary is proved. In such circumstances, the onus was on the defendant to prove that it is not the signature of Nathuni. It is also not of the defendant case that somebody else got the plaintiff admitted in the school fraudulently and falsely got his father’s name mentioned as Nathuni. In my opinion, therefore, the trial Court has wrongly discarded this evidence on placing wrong onus on the plaintiff. Ext.9 is the voter list produced by the plaintiff wherein Biranjiya has been shown as the wife of Nathuni Singh. This document has been disbelieved on the ground that the writer of the document has not been examined without considering the fact that the voter list is a public document and writer of the same is not required to be examined. The learned Court below also wrongly held that there is no presumption of correctness of these documents. 18. The plaintiff had produced ext.‘3/A’ the Pariwarik Pushtika wherein Mundrika and Biranjiya are shown as family member of Nathuni. Admittedly, this document is also a public document but this document had 14 Patna High Court FA No.447 of 1979 dt.13-02-2013 14 / 15 been discarded only on the ground that the writer of this document has not been examined. It may be mentioned here that Dalpati P.W.4 has proved this ext.‘3/A’. Further the Court below assumed that this sort of evidence could be easily maneuvered with the help of Gram Sewak and other persons of the Gram Panchait. So far this observation is concerned, in my opinion, it is unwarranted and uncalled for, particularly when no such case has been made out by the defendant to the effect that this document was obtained by playing fraud or in collusion with any particular person, therefore, the Court cannot assume a fact of his own. 19. On the contrary, the defendants have produced ext.‘C’ series which are Jarpeshgi deeds executed by Nathuni. Ext. ‘A’ series are the redemption note on the said deeds and ext. ‘B’ series are the rent receipt. These documents only proved the possession of the defendants. These documents are not related with the parentage of the plaintiff. The learned counsel for the respondent submitted that the mortgage were redeemed by the defendants only and they are in possession of the same. If plaintiff was son of Nathuni then he would have also redeemed the same. So far this submission is concerned, I find no force because the plaintiff has also produced mortgage deeds with redemption note and moreover the question as to whether plaintiff is son of Nathuni or not cannot be decided only on the basis of either mortgage deed or redemption note or possession. It cannot be presumed that because the plaintiff is not in possession, he is not the son of Nathuni. 20. In view of my above discussion, I find that the plaintiff has been able to prove that he is the son of Nathuni Singh through Biranjiya Devi who was married with Nathuni Singh in sagai form. I also find that the 15 Patna High Court FA No.447 of 1979 dt.13-02-2013 15 / 15 defendants have failed to prove that plaintiff is the son of Bhikham through Biranjiya. Therefore, the findings of the trial Court on these points are not sustainable as such are hereby reversed. 21. Now, therefore, when it has been found that plaintiff is the son of Nathuni whether he is in possession or not, he will be entitled to a share according to law in the property of Nathuni Singh as there is no pleading of either ousted or adverse possession, so possession of one co-sharer will be possession of other co-sharer. 22. In the result, this First Appeal is allowed. The impugned Judgment and Decree are set aside and the plaintiff’s suit for partition is decreed with cost of Rs.10,000/- to be paid by the defendants to the plaintiff appellant within two months failing which the plaintiff is at liberty to realise the same trough process of Court. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 13thFebruary, 2013 Sanjeev/N.A.F.R.