HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.283 of 1998 =================================================== 1. Bishambhar Singh, Son of Ramnaresh Singh. 2. Smt. Shakuntala Devi, Wife of Bishambhar Singh. Both residents of village- Chamanpura, Perg.-Merhal, P.S.- Baikunthpur, P.O.- Chamanpura, District- Gopalganj. -------Plaintiffs-Appellants-Appellants. Versus 1. Raghubansh Singh, Son of Dudhnath Singh, Resident of village- Chamanpura, at present village- Rewatirth, P.S.- Baikunthpur, P.O.- Chamanpura, District-Gopalganj. 2. Nand Kishore Singh, Son of Krishnadeo Singh, Resident of village- Rewatith, P.S.- Baikunthpur, District- Gopalganj. ----- Defendants-Respondents-Respondents. ================================================== Appearance : For the Appellant/s : Mr. R.K.P.SINGH, Adv. Mr. Rajesh Kumar Sinha, Adv. Mr. Bal Bhushan Choudhary, Adv. For the Respondent/s : Mr. Shivnandan Rai, Sr. Adv. Mr.AWADHESH KUMAR SINGH, Adv. ================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 18-03-2013 V.Nath, J. This second appeal has been filed by the plaintiffs against the judgment and decree dated 7th April 1998 passed by Additional District Judge-II Gopalganj in T.A. No. 11 of 1994 affirming the judgment and decree dated 29.01.1994 passed by Sub-Judge-I, 2 Patna High Court SA No.283 of 1998 dt.18-03-2013 P2 / 24 Gopalganj in T.S. No. 113 of 1991 by which the suit has been dismissed. 2. The plaintiffs filed the suit for declaration of title and confirmation of possession over the suit land described in the schedule of the plaint as 16 katha 2 dhur of land in village- Chamanpura P.S. Baikunthpur, District-Gopalganj of Plot No. 2932 of Khata No. 594. Shorn of unnecessary details, the plaintiffs‟ case is that the suit land belonged to the family of Bakshish Singh who had two sons namely Paltu Singh and Mangru Singh. Paltu Singh had a son Sudishth Singh and his wife was Bateshra Kuer. Paltu Singh had a daughter Pasupati Devi who had two sons namely, Prabhu Nath Singh and Shambhu Nath Singh. Mangru Singh, brother of Paltu Singh, had a son Lachhan Singh who according to the plaintiffs was unmarried and issueless. It is the case of the plaintiffs that after the death of Sudishth Singh, his widow Bateshra Kuer and Lachhan Singh together executed two deeds of gift dated 22.11.1994 and 10.04.1957 in favour of Prabhu Nath Singh and Shambhu Nath Singh with regard to the suit land along with other land. The donees accepted the gift and came in possession of the gifted property and got their names mutated. The plaintiffs have claimed to have purchased the suit land through three sale deeds dated 23.12.1989 executed by the donees Prabhu Nath Singh and Shambhu Nath Singh in favour of the plaintiffs and on that 3 Patna High Court SA No.283 of 1998 dt.18-03-2013 P3 / 24 basis they, by filing the suit, have sought for declaration of title and
Facts
confirmation of possession over the purchased land (suit land) when the defendant no. 1 started interfering in the possession of the plaintiffs claiming the suit land on the basis of the sale deed of the year 1979 executed by the defendant no. 2. 3. The defendant no. 1 resisted the claim of the plaintiffs by filing written statement wherein he asserted that the genealogy given by the plaintiffs were not correct. It has been stated that Sudishth Singh was married to Rameshra Kuer and had a daughter namely Mahasundari Devi. It has been further stated that Mahasundari Devi had a son Nand Kishore Singh (defendant no. 2). It has been pleaded by the defendant no.1 that Sudishth Singh separated in mess and residence from Lachhan Singh but the family properties remained joint, and as the wife of Sudishth Singh had predeceased him, therefore after the death of Sudishth Singh, his daughter Mahasundari Devi inherited the property of Sudishth Singh and after her death the defendant no. 2 Nand Kishore Singh acquired title and possession over the same by inheritance. It has also been asserted that Bateshara Kuer was wife of Lachhan Singh, and Pasupati Devi was daughter of Lachhan Singh who had two sons namely, Prabhu Nath Singh and Shambhu Nath Singh who were thus the maternal grand son of Lachhan Singh. The defendant no. 1 has further alleged that the deeds 4 Patna High Court SA No.283 of 1998 dt.18-03-2013 P4 / 24 of gift in favour of Prabhu Nath Singh and Shambhu Nath Singh were executed by Lachhan Singh and Bateshara Kuer with intention to grab the property of Sudishth Singh as they had no right to alienate the property of Sudishth Singh. The defendant no. 1 has claimed his title and possession over the suit property on the basis of purchase through sale deed dated 26.12.1979 executed by defendant no. 2 in his favour. 4. The trial court returned the finding that Mahasundari Devi was the daughter of Sudishth Singh from his wife Rameshra Kuer. It has been further found that Lachhan Singh was married to Bateshara Kuer and had a daughter Pasupati Devi and the deeds of gift executed by Lachhan Singh and Bateshara Kuer in favour of their maternal grand sons Prabhu Nath Singh and Shambhu Nath Singh have been found to be valid to the extent of half share of Lachhan Singh only. It has also been found that Lachhan Singh and Sudishth Singh were separate in mess, business and property and Mahasundari Kuer daughter of Sudishth Singh inherited her father‟s property after his death. It has been further found that the donees Prabhunath Singh and Shambhu Nath Singh had already sold the half share of Lachhan Singh in the family property to different persons and therefore the sale deeds of the plaintiffs for the suit land have been held to be illegal and inoperative documents as the suit land had already been sold by Nand Kishore Singh to defendant no.1 which has been found to be legal and 5 Patna High Court SA No.283 of 1998 dt.18-03-2013 P5 / 24 valid. The suit has also been found to be barred by limitation having been filed after expiry of more than 12 years from the date of execution of the sale deeds in the year 1979 in favour of the defendant no. 1. On the basis of the aforesaid findings, the suit was dismissed. 5. In appeal by the plaintiffs, the appellate court below concurred with the findings of the trial court that Mahasundari Devi was the daughter of Sudishth Singh and that there was separation between Sudishth Singh and Lachhan Singh and Mahasundari Devi inherited the interest of Sudishth Singh. The appellate court below has also found that the compromise petition (Ext. 7) in mutation case was a fabricated document by Lachhan Singh and the statements made therein by Mahasundari Devi could not amount to admission by her. It has also been held that Lachhan Singh brought the gift deeds in favour of the vendors of the plaintiffs in order to grab the share of Sudishth Singh. The appeal was therefore dismissed on the basis of these findings. 6. This second appeal has been admitted for hearing on the following substantial question of law: „Whether the impugned judgment and decree is vitiated for non-consideration of Exts. 5, 6, 9 and 9(a)?‟
Legal Reasoning
parties to partition and disrupt their joint status. It is well settled that separation in mess and residence among the members of joint family is not sufficient to break their unity of title and possession in the family properties unless it is preceded by unequivocal expression of intention by a coparcener to partition. In the present case, this aspect is further highlighted when the defendant has accepted that even after separation in mess and residence, Lachhan Singh and Sudishth Singh 13 Patna High Court SA No.283 of 1998 dt.18-03-2013 P13 / 24 continued joint with regard to family properties i.e. “Jot Jirat”, leading to more plausible inference that the separation in mess and residence was only for convenience. Both the courts below have clearly committed error in not taking into consideration the statement made in paragraph 17 of the written statement, and the finding that Sudishth Singh died in separation with regard to the family properties including the suit land is manifestly inconsistent with the pleading. The categorical statement of the defendant no.1 in the written statement that Sudishth Singh and Lachhan Singh remained joint with regard to their family properties even after separation in mess and residence is more in consonance with the continuing joint status between them than leading to the conclusion of partition between them. The presumption of unity of title and possession with regard to the joint family property therefore stands unrebutted and in absence of the necessary pleading in that regard, no evidence could have been looked into to find out the partition between them of the family properties. The conclusion, therefore, is inevitable that Sudishth Singh died in state of jointness with Lachhan Singh with regard to the family properties which included the suit land and the finding to the contrary by the courts below is not sustainable. 16. Neither in the plaint nor in the written statement the year of the death of Sudishth Singh has been mentioned. However, the 14 Patna High Court SA No.283 of 1998 dt.18-03-2013 P14 / 24 witnesses examined on behalf of the defendant no.1 including the defendant no.2 (the vendor of the defendant no.1) and the father of defendant no.2 in their cross examination have disclosed the year of death of Sudishth Singh. D.W.12 Krishandeo Singh is father of defendant no.2 and has claimed himself to be son-in-law of Sudishth Singh. In his cross examination in paragraph 6 he has stated that he was married in 1946 and his mother-in-law had died in the year 1948 and his father-in-law died in the year 1950. D.W.3 Sheonath Prasad Singh is aged about 72 years and has claimed himself to be neighbour of Sudishth Singh and Lachhan Singh and fully acquainted with them. He has stated in paragraph 4 of his cross-examination that Sudishth Singh died in the year 1950 and Rameshra Kuer died in the year 1948. He has further stated that Lachhan Singh died in the year 1956 and Bateshra died in 1957-58. D.W.4 Paras Singh has also claimed acquaintance with Sudishth Singh and Lachhan Singh. He has deposed on 13.10.1993 and has stated in paragraph no.3 of his cross examination that Sudishth Singh died 42-43 years ago which comes to 1950-51. The defendant no.2 Nand Kishore Singh has been examined as D.W.6 and he has deposed in paragraph 5 of his cross examination that he was born in 1953 but he has not seen Sudishth Singh. D.W.5 Vidyarthi Rawat is a co-villager of Sudishth Singh and Lachhan Singh and has claimed himself to be acquainted with Sudishth Singh and 15 Patna High Court SA No.283 of 1998 dt.18-03-2013 P15 / 24 Lachhan Singh. He has stated in his cross examination in paragraph 3 that Sudishth Singh died 43 years ago and Rameshra died 45 years ago. He has been examined on 16.10.93 and thus according to his deposition the year of death of Sudishth Singh on calculation comes to 1950. 17. In view of the aforesaid depositions of the witnesses of the defendant no.1, the fact that Sudishth Singh died in the year 1950 becomes either admitted or proved. It has been further pleaded by the defendant no.1 that Rameshra Kuer wife of Sudishth Singh predeceased him and this fact has also been corroborated by his witnesses. Thus scrutinizing the evidence of the defendant in apposite manner alongwith the stand and stance taken in the written statement, it can be stated with certitude that the daughter of Sudishth Singh, whether it be Pasupati Devi according to the plaintiffs or Mahasundari Devi according to the defendant no.1, was not entitled to succeed to his interest in the joint family property because, as already held, he died in the year 1950 in state of jointness with his coparcener Lachhan Singh and thus his interest in the joint family properties, by rule of survivorship, would devolve upon the surviving coparcener Lachhan Singh. The finding by both the courts below that Mahasundari Devi succeeded to the interest of Sudishth Singh in the joint family property is again not sustainable. 16 Patna High Court SA No.283 of 1998 dt.18-03-2013 P16 / 24 18. It would be condign to take into notice another aspect of the matter emanating from the proceeding of the Mutation Case No. 277/A and 389/A of the year 1954-55 in respect of Tauji No.9062. It is not in dispute that the suit plot no. 2932 pertains to Tauji No.9062. The plaintiffs have stated that their vendors Prabhu Nath Singh and Shambhu Nath Singh filed the mutation case praying for mutation of their names with regard to the properties obtained by them through the gift deed from Lachhan Singh and Bateshra Kuer and in that mutation case Mahasundari Devi filed objection but later on she compromised the matter and accepted their title and possession. The plaintiffs have adduced in evidence the compromise petition (Ext.7). The defendant no.1 in his written statement, has accepted that Mahasundarai Devi had filed objection to the prayer of Prabhu Nath Singh and Shambhu Nath Singh for mutation over the lands on the basis of the gifts but has further stated that Mahasundari Devi later on left contesting the mutation cases as there was no male member in her family and his son was minor. The defendant no.1 has however assailed the compromise petition filed in the said mutation case alleging that Mahasundari Devi did not enter into compromise and the compromise had been obtained by the plaintiffs, setting up another woman impersonating Mahasundari Devi. The learned courts below have made discussion in detail regarding the veracity of the compromise petition (Ext.7) and 17 Patna High Court SA No.283 of 1998 dt.18-03-2013 P17 / 24 have disbelieved the same. However, the fact remains that the filing of the mutation cases for the suit land and other land by the plaintiffs in the year 1954-55 on the basis of the gift and the filing of the objection by Mahasundari Devi in the said cases at least stand admitted by the defendant no.1. It would be pertinent here to take into notice that the defendant no.1 has also not denied the execution of two gift deeds by Lachhan Singh and Bateshra Kuer in favour of Prabhu Nath Singh and Shambhu Nath Singh and has assailed the same only on the ground that the two gift deeds were executed by Lachhan Singh and Bateshra Kuer fraudulently to elbow out Mahasundari Devi and usurp the share of Sudishth Singh in the joint family property. The learned trial court has found the two gift deeds to be legal and valid to the extent of half share of Lachhan Singh only. 19. The plaintiffs have brought in evidence the rent receipts (Ext.2 series) granted by the State of Bihar in the names of Prabhu Nath Singh and Shambhu Nath Singh and have also brought in evidence the Register II –Tenant‟s Ledger (Ext.4). From the perusal of Register II-Tenant‟s ledger (Ext.4) it becomes manifest that the names of Prabhu Nath Singh and Shambhu Nath Singh have been mutated for the gifted land including the suit land. The rent receipts (Ext.2 series) also show that Prabhu Nath Singh and Shambhu Nath Singh paid rent to the State of Bihar for the gifted land from the year 1962 18 Patna High Court SA No.283 of 1998 dt.18-03-2013 P18 / 24 up till 1982. Further, the sale deeds (Ext.1/b, 1/c, 1/d, 1/f and 1/g) executed by Prabhu Nath Singh and Shambhu Nath Singh in favour of different persons, with regard to the properties obtained by them through the two gift deeds from Lachhan Singh and Bateshra Kuer establish the dealing of the said properties by them as owners. The names of some of the purchasers have also been mutated which fact is apparent from the entries in the Register II(Ext.4). It is not the case of the defendant no.1 that any objection was ever raised by his vendor Nand Kishore Singh or Mahasundari Devi against these transfers by sale of the gifted land by Prabhu Nath Singh and Shambhu Nath Singh. The plaintiffs have also produced the original mortgage deeds (Ext.8/c, 8/d, 8/h and 8/i). These mortgage deeds had been executed by Paltu Singh and Mangru Singh, Paltu Singh and Lachhan Singh and also by Sudishth Singh and Lachhan Singh. The production of the original copies of the mortgage deeds and the redemption notes thereupon show that the donees Prabhu Nath Singh and Shambhu Nath Singh had redeemed those mortgages. The mortgage deed (Ext.8/b) executed on 09.06.69 by Prabhu Nath Singh and Shambhu Nath Singh further shows that the donees Prabhu Nath Singh and Shambhu Nath Singh had dealt with the gifted properties by putting the same under mortgage. The defendant no.1 has not denied the aforesaid transactions by the donees Prabhu Nath Singh and Shambhu 19 Patna High Court SA No.283 of 1998 dt.18-03-2013 P19 / 24 Nath Singh and has also not furnished any explanation in this regard. The mutation of the names of the donees over the gifted land including the suit land and their dealing with the gifted lands by sale, mortgage and redemption of earlier mortgages are the facts clearly suggestive of the exercise of title and possession by the donnes over the gifted land. Moreover Mahasundari Devi admittedly became aware of the gift deeds and the claim of the donees Prabhu Nath Singh and Shambhu Nath Singh over the gifted land including the suit land on that basis in the mutation proceeding but she did not choose to raise any objection either to the order of the mutation of the names or dealing with the gifted properties by the donees at any time later on after she left pursuing her objection in the mutation case. There is no pleading or evidence that the defendant no.2 Nand Kishore Singh son of Mahasundari Devi and vendor of the defendant no.1 also ever asserted his claim over the gifted properties and raised any objection to the mutation of the names of Prabhu Nath Singh and Shambhu Nath Singh on the basis of the gift deeds and or their dealings and transactions with the gifted properties as owners. There is also no evidence led by the contesting defendants to show that after the order passed in the mutation cases in the year 1956 and before the execution of the sale deed in 1979, Mahasundari Devi or her son defendant no.2 Nand Kishore Singh had done any act suggesting exercise of right of 20 Patna High Court SA No.283 of 1998 dt.18-03-2013 P20 / 24 ownership by them over the gifted land. Once after having got the knowledge of claim of Prabhu Nath Singh and Shambhu Nath Singh as far back as in the year 1954-55 in the mutation case on the basis of the gift deeds which according to the case of the defendant no.1 were fraudulent transactions, Mahasundari Devi or her son Nand Kishore Singh was required in law to sue for cancellation of the gift deeds or at least seek necessary declaration with regard to those gift deeds by filing a suit to avoid their legal effects as those gift deeds directly and substantially affected their property right if at all the same was there. It would be seemly to mention that in such a case Article 59 or the residuary Article 58 of the Limitation Act is attracted and under both those provisions the starting period of limitation is three years from the date when the right to sue first accrues. Further, the absence of such objection by Mahasundari Devi or her son (defendant no.2) any time after Mahasundari Devi left pursuing her objection in the mutation case in the year 1954-55 also corroborates the fact of compromise (Ext.7) in the mutation case by her as no attempt has been made by Mahasundari Devi or her son to get their names mutated or challenge the order dated 01.02.1956 passed on the basis of compromise petition (Ext.7) in Mutation Case No. 277/A and 389/A of 1954-55. Both the courts below have failed to take into consideration the conduct of Mahasundari Devi and her son Nand 21 Patna High Court SA No.283 of 1998 dt.18-03-2013 P21 / 24 Kishore Singh (defendant no.2) after the order passed in the mutation cases on the basis of compromise and the findings by both the courts below are more on conjectures and surmises than on appreciation of pleadings and evidence on record. This becomes more emphasized when the trial court recorded the finding that the donees Prabhu Nath Singh and Shambhu Nath Singh have already sold away the half share of Lachhan Singh and nothing was left thereafter to be sold to the plaintiffs, without discussing the specific pleadings and evidence in this regard as well as by misreading the deposition of Prabhu Nath Singh and Shambhu Nath Singh who nowhere admitted that they had sold away only the half share of Lachhan Singh and instead have stated that they have sold away almost the entire gifted land. This finding also becomes vulnerable in absence of the pleading that the suit land had fallen to the share of Sudishth Singh. 20. The learned senior counsel for the respondents has put much thrust on the submission that the suit of the plaintiff is barred by limitation. It has been urged that the sale deed in favour of defendant no.1 was executed and registered in the year 1979 and the period of limitation would start from the date of registration and not from the date of knowledge in view of the provision of Article 58 or Article 137 of the Limitation Act. It has also been argued that although no relief has been specifically sought against the sale deed of the year 22 Patna High Court SA No.283 of 1998 dt.18-03-2013 P22 / 24 1979 of the defendant no.1 but actually the suit would be deemed to have been filed for declaration of that sale deed as illegal. It has also been argued that the plaintiffs have not challenged the findings by the trial court on the point of limitation either before the appellate court or in this second appeal. 21. In paragraph 8 of the plaint the plaintiffs have averred that they got the knowledge of the sale deed of the year 1979 of the defendant only 15 days ago and in paragraph 9 the plaintiffs have asserted the said sale deed to be inoperative, collusive, sham and void ab initio document. The plaintiffs have further disclosed in paragraph 11 that on 20.08.91 they got the knowledge of the sale deed and thereafter the suit has been filed on 03.09.91. The defendant no.1 in his written statement in paragraph 13 has only made evasive reply to the statement made in paragraph 8 of the plaint and has not pleaded any fact or overt act in order to impute the knowledge of the sale deed upon the plaintiffs. Further in paragraph 18 of the written statement also only a bald statement has been made that the plaintiffs got the knowledge of the sale deed on the date of its execution and registration on 26.12.1979 but no mode or manner have been mentioned assumingly leading to the said inference. It is well settled that the question of limitation is a mixed question of law and fact, and therefore, the defendant no.1 was required to specifically plead the 23 Patna High Court SA No.283 of 1998 dt.18-03-2013 P23 / 24 facts convincingly leading to the conclusion that the plaintiffs had the knowledge of the sale deed of the defendant no.1 even before three years of the filing of the suit. The submission, that the registration of the sale deed in the year 1979 in favour of defendant no.1 for the suit land would be deemed to be notice of such instrument to the plaintiffs, is clearly misconceived on the wordings of Explanation I of Section 3 of the Transfer of Property Act itself where “a person is said to have notice” has been interpreted. According to the said Explanation I, the deemed notice of a transaction is thereupon a person who has acquired the immovable property subsequent to the said transaction relating to the said immovable property by a registered instrument. As found earlier, the vendor of the defendant no.1 had the knowledge of the registered gift deeds of the vendors of the plaintiffs for the suit land but even when the said gift deeds have been characterized as fraudulent transactions, it is evident that the vendor of the defendant no.1 or his predecessor–in-interest had refrained from obtaining necessary relief by assailing those gifts in accordance with law before transferring the suit land in favour of the defendant no.1. The apex court in the case of V. Chandra Shekhara Vs. Administrative Officer (2012 (12) SCC 133) has taken into notice the general principle of law that no one can transfer a better title than himself possesses and has reiterated the exceptions to this rule that the transfer 24 Patna High Court SA No.283 of 1998 dt.18-03-2013 P24 / 24 must be in good faith for value and there must be no misrepresentation or fraud which would render the transaction as void and that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the land. Testing the factual matrix on the anvil of this dictum also it is vivid that the plaintiffs were not required to assail the sale deed of the defendant no.1 in the suit. I thus find no merit in the submission that the reliefs sought for by the plaintiffs are barred by limitation. 22. For the afore premised reasons and discussions, it is held that the plaintiffs have acquired valid title and possession over the suit land on the basis of the sale deeds executed by their vendors Prabhu Nath Singh and Shambhu Nath Singh and the substantial questions of law as formulated are decided accordingly in favour of the appellants. This second appeal is, thus, allowed and the impugned judgments and decree of both the courts below are hereby set aside. In result, the plaintiffs are held entitled to the reliefs sought for in the suit, which is, accordingly, decreed. In view of the facts and circumstances of the
Arguments
7. Heard Mr. R.K.P. Singh, the learned counsel for the 6 Patna High Court SA No.283 of 1998 dt.18-03-2013 P6 / 24 appellants and Mr. Shivnandan Rai, the learned senior counsel for the respondents. The parties have also filed their respective written arguments. 8. The learned counsel for the appellants has at the out set submitted that another substantial question of law also arises for consideration in this appeal regarding the issue of inheritance of the suit land by Mahasundari Devi as daughter of Sudishth Singh who died in the year 1950 in the state of jointness with Lachhan Singh, his wife having predeceased him. It has been urged that this aspect was crucial for adjudication of the dispute between the parties but has been ignored by both the courts below. The learned counsel has further drawn the attention of this Court to the order dated 29.06.1999 by which this appeal has been admitted for hearing wherein the liberty has been given to the counsel for the appellants to raise any other question of law at the time of hearing of this appeal. 9. The learned senior counsel for the respondents however opposed the prayer on behalf of the appellants for framing additional substantial question of law on the ground that there are no foundational facts for framing the proposed additional substantial question of law. 10. After considering the rival submissions on the point of formulating additional substantial question of law, it is manifest that 7 Patna High Court SA No.283 of 1998 dt.18-03-2013 P7 / 24 the plaintiffs have claimed their right, title and interest over the suit land on the basis of the sale deeds executed by Prabhu Nath Singh and Shambhu Nath Singh asserting that they were maternal grand sons of Sudishth Singh and acquired the suit land on the basis of the gift deeds from Lachhan Singh and Bateshara Kuer whereas the defendant no. 1 has claimed his right, title and interest over the suit land on the basis that Sudishth Singh died in separation from Lachhan Singh leaving behind a daughter Mahasundari Devi who inherited his properties and whose son Nand Kishore Singh (defendant no. 2) has transferred the suit land by sale deed in his favour. Thus, the consideration of the death of Sudishth Singh either in jointness or in separation with Lachhan Singh, the date of his death and the entitlement of his daughter Mahasundari Devi to inherit his properties are material considerations for just and proper adjudication of the issues arising between the parties. In this view of the matter, the following additional substantial question of law is framed for consideration in this appeal:- „Whether the impugned judgments of both the courts below are vitiated due to non-consideration of the pleadings and evidence regarding death of Sudishth Singh in the year 1950 in the state of jointness with his coparcener Lachhan Singh with 8 Patna High Court SA No.283 of 1998 dt.18-03-2013 P8 / 24 regard to the suit property which disentitled Mahasundari Devi from succession to the interest of her father Sudishth Singh?‟ 11. Criticizing the impugned judgments, the learned counsel for the appellants has submitted that both the courts below have failed to consider that in view of the proved/admitted facts, the defendant no.2(vendor of the defendant no.1) has not acquired right, title and interest over the suit land because his mother Mahasundari Devi, through whom the defendant no.2 has claimed the suit land by inheritance, herself was not entitled to inherit the property of her father Sudishth Singh who died in the year 1950 in jointness with his cousin Lachhan Singh. It has been urged that there is no pleading in the written statement that the partition had taken place in between Sudishth Singh and Lachhan Singh with regard to joint family properties and no year or details of partition has been given. It has been pointed out that in paragraph 17 of the written statement, though it has been stated that Sudishth Singh and Lakshan Singh separated in mess and residence but there is further statement that the joint family land remained joint between them. Elaborating his submission, the learned counsel has canvassed that separation in mess and residence between the coparceners does not mean partition of the joint family property which fact has to be specifically pleaded and established by 9 Patna High Court SA No.283 of 1998 dt.18-03-2013 P9 / 24 evidence. The learned counsel has further propounded that the witnesses of the defendant no.1 including the defendant no.2 have clearly deposed that Sudishth Singh died in the year 1950 and his wife had predeceased him and in this view of the matter even after accepting the case of the defendant no.1, Mahasundari Devi, the alleged daughter of Sudishth Singh, could not have inherited the property of the share of her father in the joint family in view of rule of survivorship. It has been further argued by the learned counsel that the findings by both the courts below that there had been partition of the joint family property between Sudishth Singh and Lakshan Singh was against the pleading as well as evidence on record led by the plaintiffs which have been ignored. It has been submitted that both the courts below have committed serious error in non-suiting the plaintiff ignoring pleadings, material evidence and the settled principles of law. 12. The learned senior counsel for the respondents in reply has submitted that in cases of old partition, direct evidence of partition may not be forthcoming but the said fact can be gathered from the conduct of the parties. It has also been urged that the separation in mess and residence is sufficient to suggest the intention of the parties to separate and disrupt the joint status. Elaborating his submissions, the learned senior counsel has pointed out that the witnesses examined 10 Patna High Court SA No.283 of 1998 dt.18-03-2013 P10 / 24 on behalf of the defendant no.1 have supported the fact of partition. It has further been argued that the suit of the plaintiff was barred by limitation as the sale deed of the year 1979 of the defendant no.1 was required to be challenged within 3 years from the date of its registration in view of Article 58 or 137 of the Limitation Act. It has been pointed out that the finding by the trial court that the suit is barred by limitation has not been challenged by the appellants in the appellate court below as well as in this second appeal and therefore, it should be held that the finding of the appellate court below regarding the limitation has attained finality. 13. From the facts of the case, it is manifest that the suit land originally belonged to Bakshish Singh who had two sons Paltu Singh and Mangru Singh. Paltu Singh had a son Sudishth Singh and Mangru Singh had a son Lachhan Singh. However, the parties are seriously at issue with regard to the genealogy thereafter when the plaintiffs have claimed that their vendors Prabhu Nath Singh and Sambhunath Singh were the maternal grand sons of Sudishth Singh from his daughter Pasupati Devi but the defendant no.1 has pleaded that Prabhu Nath Singh and Shambhu Nath Singh were the maternal grand sons of Lachhan Singh being sons of his daughter Pasupati Devi, and Nand Kishore Singh(the defendant no.2 and vendor of defendant no.1) was the maternal grand son of Sudishth Singh born out of his daughter 11 Patna High Court SA No.283 of 1998 dt.18-03-2013 P11 / 24 Mahasundari Devi. There is also further divergence between the parties when the plaintiffs have claimed that Lachhan Singh was unmarried and issueless but the defendant no.1 has claimed that Lachhan Singh was married with Bateshra Kuer and had a daughter Pasupati Devi whereas Sudishth Singh was married with Rameshra Kuer and had a daughter Mahasundari Devi. 14. Before adverting to the findings of the courts below on the genealogy of the family of Bakshish Singh, it would be relevant to consider the crucial question whether Sudishth Singh died in jointness or in separation from his coparcener Lachhan Singh with regard to the family properties. In view of the admitted genealogy uptil Sudishth Singh and Lachhan Singh, there would be presumption that they were joint with regard to their family property. The plaintiffs have stated in plaint that after the death of Sudishth Singh, his widow Bateshra Kuer and Lachhan Singh jointly came in possession of the entire family property of Bakshish Singh. The plaintiffs have also brought in evidence mortgage deeds (Ext.8 Series) executed by Paltu Singh and Lakshan Singh (Ext.8/F, 8/G, 8/H and 8/I) during the year 1936-1939, and mortgage deeds executed by Lakshan Singh and Sudishth Singh (Ext. 8/C and 8/D) during the year 1939-46 to establish that Paltu Singh and Lachhan Singh, and thereafter, Sudishth Singh and Lakshan Singh continued to be joint. On the other hand the defendant no.1 in 12 Patna High Court SA No.283 of 1998 dt.18-03-2013 P12 / 24 his written statement in paragraph 17 has stated as follows: “;g fd iyVw flag oks eax: flag ds ejus ds ckn muds nksuksa yM+ds lqfn’V flag oks y{ku flag vkil esa vyx gks x, oks viuk [kkuk & ihuk vkSj ?kj }kj vyx dj fy, ysfdu tksr ftjkr bZTkekbZy pyk vk;kA” 15. There is no further pleading in the written statement regarding partition of the joint family property between Sudishth Singh and Lachhan Singh and no date, manner and year of partition have been pleaded nor any details of allotment of properties have been given showing separate allotment of properties to Sudishth Singh and Lachhan Singh. There is also no specific pleading that any of the two coparceners i.e. Sudishth Singh and Lachhan Singh had ever expressed intention to partition the joint family properties before separating in mess and residence. I do not find force in the submission of the learned senior counsel for the respondent that separation in mess and residence alone is sufficient indication of the intention of the
Decision
case, there shall be no order as to costs. (V. Nath, J) Nitesh/-