HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.186 of 1981 =========================================================== 1. Raj Nath Singh son of Paras Nath Singh, resident of village Mauna Fatak, P.S. and P.O. Chapra Town, District-Saran. Versus 1. Raj Kumari Devi widow of Krishna Singh, resident of Mohalla Mauna P.O. and .... .... Appellant/s P.S. Chapra Town, District-Saran. 2. Reshmi Kumari. 3. Asha Kumari. 4. Babli Kumari, all daughters of late Krishna Singh, resident of Mohalla Mauna, P.S. and P.O. Chapra Town, District-Saran. 5. Bali Ram Singh son of Ram Awtar Singh. 6. Parasnath Singh, son of Mahendra Singh, all resident of Mohalla-Mawna, P.S. and P.O. Chapra Town, District-Saran. 7. Smt. Indra Mani wife of Vijay Kumar Singh, resident of village-Muhmadpur, P.S. and P.O. Parkha, District- Saran. 8. Smt. Manju wife of Om Prakash Pandey, resident of village, Siswan, P.S. Jalalpur, P.O. Nagara, District-Saran. 9. Smt. Puspa Gupta daughter of Sri Niranjan Pd. Gupta wife of Sri Sunil Kumar Gupta, village Benganj P.S. Chapra Town, District-Saran. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. SHARDA SINHA Mr. R. P. Singh 5 Mr. Ali Muzaffar Mr. Mahtab Ahmad Mr. Hari Shankar Roy Mr. Satyendra Kumar Singh For the Respondent/s : Mr. PAWAN KR.MISHRA Mr. Rajan Kr.Dubey Mr. Binay Kr.Choubey Mr. Lakshman Lal Pandey Mr. Ravi Shanker Duivedi =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 28-10-2013 Patna High Court FA No.186 of 1981 dt.28-10-2013 2 Aggrieved by the judgment and decree dated 28.03.1981 by Additional Sub-Judge-V, Chapra (Saran) in P.S. No. 26 of 1980/ 04 of 1981 for partition with respect to schedule 1 property, the defendant no. 1 in the suit has preferred this appeal. The genealogy of the family of the plaintiff and the defendants is not in dispute according to which Gopal Singh had three sons namely Mahendra Singh, Nagina Singh and Raghunath Singh out of whom Mahendra Singh (now deceased, through L.R.) is the defendant no. 1 in the suit. Mahendra Singh had three sons namely Ramautar Singh, Paras Singh and Ramkumar Singh out of whom Ramkumar Singh died unmarried issueless and therefore Ramautar Singh and Paras Singh have been impleaded as defendant no. 3 and
Facts
defendant no. 2 respectively in the suit. Ramautar Singh has two sons namely Krishna Singh and Baliram Singh out of whom Krishna Singh is the sole plaintiff in the suit and his brother Baliram Singh is defendant no. 4. The suit has been filed by the sole plaintiff for partition claiming his share in the suit properties. In the plaint, the suit properties have been described in the two schedules i.e. schedule-I and schedule-II. The plaintiff’s case, in short, is that the common ancestor Gopal Singh died some time in the year 1925 and at the time of his death his two sons Nagina Singh and Raghunath Singh were minor Patna High Court FA No.186 of 1981 dt.28-10-2013 3 and the defendant no. 1 Mahendra Singh was alone major. His three sons jointly inherited the family properties and continued joint with the defendant no. 1 as Karta of the family. It is further case of the plaintiff that the defendant no. 1 Mahendra Singh for self and on behalf of his two minor brothers Raghunath Singh and Nagina Singh executed a mortgage deed on 13.06.1929 for Rs. 325/- in favour of Bahuriya Janki Kuer and after receiving the mortgage amount put the mortgagee in possession and similarly on 02.07.1929 he executed another mortgage deed in favour of the same mortgagee Bahuria Janki Kuer for Rs. 200/- and put her in possession after getting the mortgage money. It is also case of the plaintiff that Nagina Singh had executed two sale deeds dated 30.10.1929 and 05.05.1931 in favour of Mahendra Singh in order to avoid future disputes with regard to his share in the joint family property even when he was joint with Mahendra Singh who was entitled to inherit his share by rule of survivorship. The plaintiff has pleaded that the said two sale deeds by Nagina Singh were void and inoperative documents and after the death of Nagina Singh in 1945-46, his share devolved upon his two brothers Mahendra Singh and Raghunath Singh. The plaintiff’s further case is that the financial condition of the family was precarious and since after the death of Gopal Singh till the death of Nagina Singh, no property had been acquired in the joint family. It is also the case of the Patna High Court FA No.186 of 1981 dt.28-10-2013 4 plaintiff that in the year 1955-56, the defendant no. 1 and his brother Raghunath Singh separated and the entire family property was equally divided in between them. The plaintiff’s further case is that Mahendra Singh (defendant no. 1) is joint with his sons and grand sons and out of the income of the joint family he has acquired properties in the name of the individual members which have been described in schedule-II of the plaint. The plaintiff has however alleged that defendant no. 1 (Mahendra Singh) separated from the father of the plaintiff (defendant no. 3) in the year 1969 in mess but no partition of the property was done and thereafter defendant no. 1 (Mahendra Singh) filed T.S. No. 206 of 1969 for partition in which the father of the plaintiff initially filed written statement but later on could not contest the suit due to his affliction by tuberculosis and the said suit was decreed ex parte. The plaintiff has alleged that in the said suit the defendant no. 1 malafidely did not include the present suit properties as subject matter of the partition and therefore the necessity for filing the present suit has arisen with regard to the left out properties. The suit has been contested by the defendant no. 1 and 2 who have filed a joint written statement. It is the case of the defendants that Gopal Singh died in the year 1922 and soon thereafter his three sons completely separated in the year 1924. These defendants have accepted the execution of the two mortgage deeds Patna High Court FA No.186 of 1981 dt.28-10-2013 5 dated 13.06.1929 and 02.07.1929 in favour of Bahuriya Janki Kuer but have stated that the mortgage amount was received by the three brothers in equal shares as the defendant no. 1 was not the karta of the family in the year 1929. The further case of these defendants is that the separated brother Nagina Singh was in need of money and therefore he executed a mortgage deed in favour of the defendant no. 1. But later on Nagina Singh again fell in need of more money and so he executed two sale deeds dated 29.10.1929 and 05.03.1931 in favour of the defendant no. 1 for his properties. The defendants have, however, claimed that the defendant no. 1, out of his own separate income, paid the mortgage amount as well as the consideration money for the sale deed in his favour. These defendants have further stated that the financial condition of the family of Gopal Singh was precarious till his death and the defendant no. 1 had started working in the post office from much before 1922 temporarily but later on he was permanently employed therein and retired on the salary of Rs.135/-. It is the case of these defendants that the defendant no. 1 thus had sufficient separate income out of which he took the properties in mortgage and also purchased properties mentioned in schedule-I of the plaint. These defendants have further denied partition between defendant no. 1 Mahendra Singh and Raghunath Singh in the year 1955-56 and have stated that the correct facts regarding partition have Patna High Court FA No.186 of 1981 dt.28-10-2013 6 been mentioned in the mortgage deed dated 18.03.1944 executed by Raghunath Singh in favour of defendant no. 1 Mahendra Singh. It is further case of these defendants that due to the bad behaviour of defendant no. 3, he was separated in the year 1959 by the defendant no. 1 and ultimately these defendants filed T.S. No. 206 of 1969 for partition of the joint family property with specific assertion that the present suit properties were the self acquired properties of the defendant no. 1. The defendant no. 3 (the father of the plaintiff) filed his written statement in the said suit but later on did not contest the suit which had been decreed ex parte accepting the case of the defendants regarding self acquisition. These defendants have further claimed that the properties mentioned in schedule-II of the plaint are also the self acquired properties of the defendant no. 2 and his wife who are employed persons and have got sufficient personal income. In view of the pleadings of the parties, the trial court framed altogether 7 issues out of which the issue no. 3, 4 and 5 were tried as material issues and are as follows:- (3) Is the suit barred by the rule of res judicata? (4) Is there unity of title and jointness of possession between the parties with respect to schedule-I property? (5) Is there unity of title and possession between the parties with respect to schedule-II properties? Patna High Court FA No.186 of 1981 dt.28-10-2013 7 After considering the evidence of the parties and their pleadings, the learned court below has held that the properties mentioned in schedule-I of the plaint are the joint family properties but has further held that the properties mentioned in schedule-II of the plaint are the self acquired and separate properties of the defendant no. 2 Paras Nath Singh, and accordingly decided the issue no. 4 in favour of the plaintiff and the issue no. 5 against him. The learned court below has also held that the suit is not barred by res judicata and accordingly the issue no. 3 has been decided in favour of the plaintiff. The suit has therefore been decreed with regard to schedule-I properties of the plaint alone holding the plaintiff to be entitled to 1/9th share in the schedule-I properties. The present appeal has been filed by the defendant no. 1 Mahendra Singh assailing the decree with regard to schedule-I properties. No cross objection had been filed by the plaintiff with regard to the dismissal of the suit for the properties mentioned in schedule-II of the plaint.
Legal Reasoning
share along with his sons. It is well settled that the share obtained by a co-parcener on partition of ancestral property is ancestral property as regards his male issue and they take an interest in it by birth whether they are in existence at the time of partition or are born subsequently. It is also well settled that such male issue acquires a vested interest in the accretions of the ancestral property as well. For these reasons and discussions, there is no difficulty in holding that the schedule-I properties as mentioned in the plaint are the joint family property of the plaintiff and the defendants, and the plaintiff is entitled to get a share in the same. The learned court below has meticulously examined the evidence led by the parties and reached to the correct conclusion holding the plaintiff to be entitled to 1/9th share in schedule-I properties of the plaint and granting the decree for partition of the Patna High Court FA No.186 of 1981 dt.28-10-2013 18 same accordingly.
Arguments
Criticizing the impugned judgment and decree Mr. Ram Suresh Rai, the learned senior counsel for the defendant-appellant has submitted that the learned court below has ignored the material evidence on record and the settled principles of law while coming to the finding that the plaintiff and the defendant 2nd set (defendant no. 3 Patna High Court FA No.186 of 1981 dt.28-10-2013 8 and 4) have got share in the properties mentioned in schedule-I of the plaint as they are joint family properties. It has been urged by the learned senior counsel that admittedly the schedule-I properties have been acquired in the name of the defendant no. 1 and therefore the presumption would be that the same are his self acquired properties until the plaintiff has succeed in establishing nucleus in the family generating sufficient income for acquisition of those properties. It has been canvassed that only the property inherited from the father is the ancestral property in the hands of the son vis a vis the grand sons, and the property acquired by the son from other sources would not ipso facto become ancestral joint family property. It has been further submitted that the separate income of the defendant no. 1 has been admitted in the plaint by the plaintiff, and the defendant no. 1 has also explained his personal income in the written statement and even if the parties to the suit are accepted to be joint, in absence of a case of blending of his separate property by the defendant no. 1 in the joint stock, the plaintiff cannot claim a share in the same. It has been thus submitted that the plaintiff having not proved the nucleus in the joint family, then in view of the admitted fact of the sale deeds for the schedule-I properties exclusively being in the name of the defendant no. 1 Mahendra Singh, the plaintiff cannot get the share in those properties. The impugned judgment has also been assailed on the Patna High Court FA No.186 of 1981 dt.28-10-2013 9 ground that the decision in previous T.S. No. 206 of 1969 would operate as res judicata as in the said suit the nature of the schedule-I properties as exclusive separate property of the defendant no. 1 was directly in contest between the parties and the suit has been ultimately decreed upholding the said claim of the defendant no. 1. Mr. S.S. Dwivedi, the learned senior counsel for the plaintiff-respondent, in reply, has submitted that the learned court below has correctly found that the properties mentioned in schedule-I of the plaint have been acquired out of the money received by the defendant no. 1 as karta of the family from the mortgage deeds. Elaborating his submissions, the learned senior counsel has argued that admittedly there has been no partition between the plaintiff and the defendants with regard to schedule-1 properties which have been acquired in the name of the defendant no. 1 Mahendra Singh who as father and grand father of the plaintiff and defendants, must be taken to be the karta of the family and therefore heavy burden was on the defendant no. 1 to plead and establish his case of self acquisition but he has squarely failed to discharge the said burden. It has been further canvassed that the proof of blending is not required in the facts of the present case when the defendant no. 1 has not specifically asserted and established his separate possession rather in his deposition he has accepted that he has acquired properties for the benefit of the family Patna High Court FA No.186 of 1981 dt.28-10-2013 10 including his sons. It has also been argued that adverse inference must be drawn against the defendant no. 1 for not producing the judgment of the T.S. No. 206 of 1969 and there is no other evidence to establish that the claim of self acquisition of schedule-I properties by the defendant no. 1 had been raised as an issue in the said suit and has been finally determined in favour of the defendant no. 1. In view of the rival contentions of the parties, the following points emerge for determination in this appeal:- “(i) Whether the plaintiff has succeeded in establishing unity of title and possession with regard to the properties mentioned in schedule-I of the plaint? (ii) Whether the suit with regard to the plaintiff’s claim over schedule-I properties of the plaint is barred by res judicata? From the undisputed genealogy of the family, it is clear that Gopal Singh had three sons namely Mahendra Singh, Nagina Singh, and Raghunath Singh and admittedly also they had jointly inherited the family property after the death of Gopal Singh. The plaintiff Krishna Singh is the grand son of the defendant no. 1 Mahendra Singh and other defendants are his sons and grand sons. The fact is also not in dispute that Nagina Singh died leaving behind no class-I heir. It is further case of the plaintiff that there had been partition between the defendant no. 1 and his remaining brother Patna High Court FA No.186 of 1981 dt.28-10-2013 11 Raghunath Singh in the year 1955-56. The plaintiff has however come out with the case that the defendant no. 1, has continued to be joint with his sons and grand sons and has acquired the suit properties from the joint family fund out of which schedule-I properties are in his name and the schedule-II properties are in the name of the defendant no. 2. It is further case of the plaintiff that the defendant no. 1 filed T.S. No. 206 of 1969 for partition of the joint family property along with the defendant no. 2 also as plaintiff against the father of the plaintiff (defendant no. 3 in the present suit) as defendant no. 1 in that suit and the plaintiff and the defendant no. 1 of this suit as defendant no. 2 and 3 in that suit. The plaintiff has alleged that the defendant no. 1 and 2 malafidely did not include the present suit properties as subject matter of partition in that suit i.e. T.S. No. 206 of 1969 and wrongly claimed these properties to be their self acquisition. It is however the case of the plaintiff that his father though filed the written statement in that suit challenging the story of self acquisition but could not contest the said suit which resulted in the ex parte decree. The plaintiff, thus, has claimed that the present suit properties have been left out from partition and there was no final determination that these properties were self acquired properties of the plaintiffs of T.S. No. 206 of 1969. The contesting defendants on the other hand have Patna High Court FA No.186 of 1981 dt.28-10-2013 12 maintained their case of self acquisition of the suit properties and have come out with the case that the previous suit filed by them with specific assertion of the self acquisition of the present suit properties has been decreed and therefore the present suit is barred by res judicata. The plaint of the previous suit (T.S. No. 206 of 1969) has been brought on record as Ext. F on behalf of the contesting defendants and the written statement filed by the father of the plaintiff as defendant no. 1 in that suit has been brought on record as Ext. J. From the perusal of these two documents, it transpires that the case of self acquisition was asserted by the plaintiffs of that suit and contested by the defendant no. 1 of that suit. However, surprisingly the judgment passed in that suit has not been brought on record on behalf of the contesting defendants to establish that the issue with regard to the self acquisition as claimed by the plaintiff and denied by the defendants of that suit was in fact raised and finally decided. The depositions of the plaintiffs of that suit have also not been brought in evidence to establish that the plaintiffs during trial supported their case of self acquisition. In absence of cogent evidence to support the contention on behalf of the contesting defendants-appellant to the fact that the issue of self acquisition had been determined in the previous suit, it is difficult to accept the submission that the present suit is Patna High Court FA No.186 of 1981 dt.28-10-2013 13 barred by res judicata. Rather the submission on behalf of the plaintiff-respondent appears to have force that adverse inference in this regard must be drawn against the contesting defendants-appellant for withholding the best evidence i.e. the judgment of T.S. No. 206 of 1969. Admittedly, the previous suit i.e. T.S. No. 206 of 1969 has been decreed exparte against the plaintiff and defendant no. 3 and 4 and the present suit properties were also not the subject matter of partition in that suit filed by the contesting defendants. Even though the rival pleadings regarding the nature of the present suit properties had been raised in that suit but on that basis alone the bar of res judicata cannot be attracted. In absence of evidence that the said controversy has been finally determined in that suit the present suit cannot be held to be barred by res judicata. As such, I do not find any merit in the contention raised on behalf of the appellant that the present suit is barred by res judicata. The point no. 2 is accordingly decided against the appellant. The plaintiff has claimed the present suit properties to have been acquired by the defendant no. 1 as karta of the joint family out of the joint family fund. It is true that the sale deeds for the schedule-I properties dated 29.10.1929 (Ext. B) and 21.05.1931 (Ext. B/1) stand in the name of defendant no. 1 Mahendra Singh. The said Patna High Court FA No.186 of 1981 dt.28-10-2013 14 two sale deeds have been executed by Nagina Singh with regard to his share in the joint family property in favour of the defendant no. 1 Mahendra Singh. It is the case of the defendant no. 1 that there had been separation between the three brothers namely Mahendra Singh, Nagina Singh and Raghunath Singh in the year 1924 itself but it has not been disputed that the defendant no. 1 Mahendra Singh thereafter continued jointly with his sons and has remained the karta of his own joint family. This fact is also corroborated by the filing of the T.S. No. 206 of 1969 by the defendant no. 1 for partition. The parameters for consideration of the case of self acquisition by a karta of a joint family are different from that of the case of self acquisition by a co-parcener. It would be fruitful here to reminisce the principle in this regard, spelt out by the Apex Court in the case of Mallesappa Vs. Mallappa, A.I.R. 1961 SC 1268 as follows: “…..There is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his co-parceners…..” The defendant no. 1 in his written statement has admitted Patna High Court FA No.186 of 1981 dt.28-10-2013 15 that he along with his two brothers had executed mortgage deeds in favour of Bahuriya Janki Kuer on 30.06.1929 and 02.07.1929 for Rs. 325/- and Rs. 200/- respectively. It appears from the further statements made in the written statement that a mortgage deed had also been executed in favour of Bindhayachal Prasad on 22.02.1929 by the two brothers i.e. defendant no. 1 Mahendra Singh and Nagina Singh for Rs. 300/- out of which the defendant no. 1 got Rs. 150/- in his share. Thus, it is apparent that even according to his own case, the defendant no. 1 had funds in his hands by mortgage and sale of his share in the joint family property. It is no where the case of the defendant no. 1 that the present suit properties acquired by him in his name could not have been acquired out of the funds in his hands which he was having with him as karta of his own joint family. In his deposition as D.W. 2, the defendant no. 1 has accepted to have received his share in the money out of the mortgages and sales of the joint family property. He has however stated that he had savings from his salary but has not stated the total amount of his savings in the year 1928. It has also been stated by the defendant no. 1 that he was appointed in post office in the year 1920 on the salary of Rs. 14 per month and retired in the year 1957 on the salary of Rs. 135/-. He has further accepted that he was in possession of more than three bighas of ancestral agricultural land producing rice and wheat. Patna High Court FA No.186 of 1981 dt.28-10-2013 16 Noticeably, there is no pleading or evidence that the defendant no. 1 acquired any other property after the year 1929. Thus, the statements made in the deposition and in the written statements by the defendant no. 1 do not appear to be sufficient to rule out the case that the suit properties acquired in his name by the defendant no. 1 had been acquired out of the joint family fund which was in the hands of the defendant no. 1 as karta by way of sale and mortgage of the joint family property as well as from the yields of the agricultural land. The inevitable conclusion therefore is that the present suit properties (schedule-I properties of the plaint) are definitely accretions to the property of the joint family consisting of the defendant no. 1, his sons and grand sons. It has been submitted on behalf of the defendant no. 1- appellant that there is no pleading and proof of blending of his separate property by the defendant no. 1 in the joint stock. In view of the finding above that the present suit properties cannot be treated to be the exclusive property of the defendant no. 1, the question of blending the same with the joint family property does not arise. But even otherwise also in absence of specific case and evidence by the defendant no. 1 that he exercised separate possession and maintained the identity of the suit properties as his separate properties and further in view of the statement made in paragraph 15 (Ka) of his deposition Patna High Court FA No.186 of 1981 dt.28-10-2013 17 that “ jkekorkj ls vyx gksus ds igys eSa mls ekurk tkurk FkkA eSa bUgha cky cPpksa ds [kkfrj iSls cpkrk FkkA eSaus cky cPpksa ds fy, gh txg tehu vthZr dhA” there remains no substance in the submission on behalf of the appellant that the plaintiff has failed to plead and prove the blending. Further, the averments made in the plaint (Ext. F) of T.S. No. 206 of 1969 filed by the defendant no. 1 as plaintiff also shows that the defendant no. 1 had accepted to be in joint possession of the ancestral property (subject mater of that suit) allotted in his
Decision
In the result, I do not find any merit in this appeal which is, accordingly, dismissed and the impugned judgment and decree with regard to partition of the properties mentioned in schedule-I is upheld. In the facts and circumstances of the case there shall however be no order as to costs. Devendra/- (V. Nath, J)