Bharti Devi v. Ganga Choudhary

concurrence, the learned first appellate court has dismissed the appeal.

#3. The case of the plaintiff in brief is that the parties to the suit are Hindu by religion and follow Mithakshara School of law. Both the parties are the descendants of common ancestor namely Chhatu Lal Choudhary. Chhatu Lal Choudhary had no son and had only two daughters namely Rama Devi and Shyama Devi. Both of them were married to a single person namely Mahavir Choudhary. After death of Chhatu Lal Choudhary, his properties were inherited by both his daughters jointly as joint property. Rama Devi has two sons namely Jagdish Choudhary, who is the plaintiff and Ganesh Choudhary- the defendant no.1. Both of whom, jointly inherited 50% of the property of Chhatu Lal Choudhary and jointly came in possession. Shyama Devi has one son namely Suresh Choudhary who died leaving behind his only daughter Sharda Devi and widow who are the defendant 2nd party. Till Shyama Devi was alive, both she and her sister Rama Devi were jointly possessing the land and cultivating the same and sharing the usufruct equally from the joint cultivation. After the death of Shyama Devi, the plaintiff and the defendant 1st party together possessed half of the land by way of approximation but there was no proper partition. The plaintiff came to know that the defendant 1st party by fraud has prepared a partition deed illegally and has applied for mutation vide Mutation Case no.83 of 1989-90 and the same was objected to by the plaintiff and the defendant 1st party filed a forged partition deed in the mutation case and 2 Second Appeal No. 395 of 1998 on the basis of the same, the defendant 1st party succeeded in getting 10 Bighas, 09 Khata and 8 dhurs of land in his name. After going through the registered partition deed no. 3407 dated 29.12.79, the plaintiff came to know about the fraudulent partition deed being prepared by the defendant 1st party, though the joint property, has not been partitioned by metes and bounds. The plaintiff further pleaded that as per Hindu Law, the plaintiff can get 1/4th share of the property of Chhatu Lal Choudhary and the defendant 1st party should get 1/4th share while the defendant 2nd party are entitled to get half share of the property of Chhatu Lal Choudhary. Taking advantage of the illiteracy of the defendants, the plaintiff managed to fabricate the said fraudulent deed of partition and the plaintiff has never singed the partition deed. Hence, the plaintiff prayed for following reliefs:- (a) (b) (c) (d) a decree for partition of 1/4th share of the suit land to the plaintiff. to declare partition deed no.3407 dated 29.12.79 to be null and void. to declare that no partition has taken place on 29.12.79 between the parties. cost of the suit and other reliefs.

#4. In their written statement, the defendant 1st party No.1 and the defendant 2nd party No.2 challenged the maintainability of the suit on various technical grounds and pleaded that there had been partition between the parties in respect of the suit land by partition deed no.1172 dated 12.03.77 during the life time of Shyama Devi and the parties were in separate cultivating possession of the suit land. According to the said partition, Shyama Devi and her daughter namely Sarda @ Soudhop Devi begin to live with the defendant 1st party as the 2nd party No.1 begin to give trouble to them. The partition deed between the plaintiff and the 3 Second Appeal No. 395 of 1998 defendant 1st party and Shyama Devi was executed being partition deed no.3407 dated 29.12.79 and all the parties signed over the same and took possession over their respective land as mentioned in the said deed. The plaintiff had knowledge about the Mutation Case No.83 and 82 of 1989- 90 which has finally been decided by the D.C.L.R., Godda on 20.12.90. The cremation rituals of Suresh Choudhary was performed by the son of the defendant 1st party namely Sanjeev Kumar Jaiswal and the cremation and cremation and the last rites of Shyama Devi was performed by the defendant 1st party- Suresh and Shyama signed and put their left thumb impressions on the partition deed no. 3407 dated 29.12.79 and the plaintiff had knowledge about the said deed on 29.12.1979 when he signed over it. It is lastly submitted that the suit is barred by limitation.

#5. The defendant 2nd party Punam Devi denied all the allegations made in the plaint and challenged the maintainability of the suit on various technical grounds. She further pleaded that Rama Devi and Shyama Devi with the help of their relatives and villagers had amicably divided the suit properties ‰ share between the sisters and since then according to the partition the two sisters had been coming in peaceful physical cultivating possession with paying rent according to their share in question. Ganesh Choudhary played fraud among the family taking advantage that he is the only literate person in the family and the karta of the family and the left thumb impression of the parties and the witnesses are false and fabricated on the partition deed.

#6. The written statement filed on behalf of the defendant 2nd party No.1- Nanda Rani filed on 03.09.97, the defendant 2nd party No.1 4 Second Appeal No. 395 of 1998 challenged the maintainability of the suit on various technical grounds. She further pleaded that Rama Devi and Shyama Devi amicably divided the suit property half and half share and got share in the property since then but their property has not been partitioned.

#7. Perusal of the record reveals that on 30.11.1994, the following five issues were framed which are as under:- (1.) (2.) Is the suit as framed maintainable? Is the suit barred by law of limitation, waiver and non-joinder of necessary party? (3.) Had there been any partition in between the parties vide partition Deed no.1172 dated 12.3.77 or the lands are still joint between the parties? Is the deed of partition deed no.3407 dated 29.12.79 fabricated by fraud by the defendant? Is the plaintiff entitled to get decree of partition as prayed? (4.) (5.)

#8. The record reveals that there are several anomalies in the record. First witness being P.W.1 was examined on 03.06.1997 but even after that the defendant 2nd party No.1 has filed her written statement. There is no reference in the judgment about recasting of the issues after filing of the written statement by the defendant 2nd party No.1. The order sheet shows that no order has been passed, accepting the written statement filed by the defendant 2nd party No.1 even at the stage of examination of the witnesses. The learned trial court in its judgment has mentioned the seven number of issues have been settled. The trial court record shows that vide order dated 06.10.1997, Punam Devi has been substituted in place of original defendant 2nd party No.2 namely Sharda Devi but she has also been allowed to file a written statement on

20.11.1997 taking a stand contrary to that of the original defendant 2nd party who filed a joint written statement with the defendant 1st party No.1, moreover, though by that time, the trial of the suit has already 5 Second Appeal No. 395 of 1998 proceeded substantially including examination of several witnesses.

#9. The learned trial court in its judgment mentioned that the following seven issues were settled :- Is the suit as framed maintainable? Is the suit barred by law of limitation, estoppel and waiver? Is the suit bad for non-joinder of necessary parties? (1.) (2.) (3.) (4.) Have there been any partition in between parties according to partition deed no.1172 dated 12.3.77? Is the partition deed no.3407 dated 29.12.79 a fabricated document by fraud by the defendant 1st party? Is there is any unity of title and possession with respect to suit land between the parties? Is the plaintiff entitled to get decree of partition as prayed for? (5.) (6.) (7.)

#10. The learned trial court disposed of the issue nos. (1) and (2) as not pressed. Thereafter, the learned trial court took up issue no. (3) and after considering the evidence in the record came to the conclusion that the suit is not bad for non-joinder of necessary party. Thereafter, the learned trial court took up issue no. (4) and came to the conclusion that no partition in between the parties ever took place as per partition deed no.1172 dated 12.03.77. The learned trial next court took up issue no. (5) and after considering the materials in the record and after observing that there is no equal partition vide Ext. B-1 rather there is unequal and uneven distribution of ancestral lands between the parties, which is illegal and unjust and under such circumstances, concluded that Ext. B-1 is tainted with fraud and therefore, held that the partition deed no. 3407 dated 29.12.79 is fabricated document tainted with fraud by the defendant 1st party. The learned trial court next took up issue Nos. (6) and (7) together and held that there is unity of title and possession with respect to the suit land between the parties and the plaintiff is entitled to a decree of partition and passed a preliminary decree for partition by 6 Second Appeal No. 395 of 1998 holding that the plaintiff, defendant 1st party, defendant 2nd party No.1, defendant 2nd party No.2 each is entitled to 1/4th share of the suit land.

#11. Being aggrieved by the judgment and decree passed by the learned trial court, the defendant 1st party filed Title Appeal No.6 of 98 in the court of District Judge, Godda which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

#12. The learned first appellate court formulated the following four point for determination for consideration:- (I) Whether there had been a partition of the suit properties between the parties either in the year 1977 or 1979 evidenced by registered partition deed no.1172 dated 12.03.77 and registered partition deed no.3407 dated 29.12.79? (II) Whether the partition in the circumstances of this case be said to be just and fair and whether it can be reopened or not? (III) Whether the plaintiff has got any cause of action? (IV) Whether the plaintiff suit is barred by limitation?

#13. The learned first appellate court first took up point for determination nos. (I) and (II) together and after considering the materials in the record found that there is no equal partition of the suit property according the share of the parties and Ext. B-1 or Ext. A-1 will not stand in the way of reopening the partition. Thereafter the learned first appellate court took up point for determination no. (III) and in view of the finding of the point for determination nos. (I) and (II), answered the point for determination no. (III) by holding that the plaintiff has got valid cause of action for the suit. The learned first appellate court lastly took up point for determination No. (IV) and after considering the materials in the record came to the conclusion that the suit of the plaintiff is not barred by limitation and thus finding no merit in the appeal, 7 Second Appeal No. 395 of 1998 dismissed the same.

#14. At the time of Admission of this appeal, the following substantial questions of law were formulated vide order dated 23.04.2003 :- (1) Whether the concurrent findings recorded by both the courts below disbelieving the partition which took place fourteen years back by virtue of registered deed of partition is perverse in law? (2) Whether the court of appeal has erred in law in holding that disproportionate partition of the joint family property gives a fresh cause of action for filing a suit for partition?

#15. Mr. Rahul Kumar Gupta, learned counsel for the appellants relied upon the judgment of Hon’ble Supreme Court of India in the case of Ranganayakamma and Another v. K.S. Prakash (Dead) by LRs. And Others reported in (2008) 15 SCC 673, paragraph nos. 38 and 40 of which reads as under:- “38. Section 16 of the Contract Act provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness. In Prem Singh [(2006) 5 SCC 353] it was stated: (SCC pp. 360-61, para 27) “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” It was opined: (SCC pp. 357-58, para 12) “12. An extinction of right, as contemplated by the provisions of the Limitation Act, prima facie would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the articles, provides that upon lapse of the prescribed period, the institution of a suit will be barred. Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.” In Rukhmabai [AIR 1960 SC 335 : (1960) 2 SCR 253] this Court held: (AIR p. 344, para 17) “17. In unravelling a fraud committed jointly by the members of a family, only such letters that passed inter se between them can give the clue to the truth.” Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588] this Court categorically laid down that in establishing alleged fraud, it must be proved that the representation made was false to the knowledge of the party making 8 Second Appeal No. 395 of 1998 such representation or that the party could have no reasonable belief that it was true. Level of proof required in such a case was held to be extremely high.

#40. When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been disclosed.” and submits that it has been held by the Hon’ble Supreme Court of India that when there is registered deed of partition between the parties to the suit or other coparceners as is the case in the present appeal, the same can only be not relied upon and can be given a go by, if and only if, there is any element of fraud practiced by the beneficiary of the deed of partition or otherwise but certainly merely because there is unequal apportionment of the properties which is partition by itself is not a ground to ignore the registered deed of partition.

#16. It is further submitted by Mr. Gupta that as has been held in paragraph no.40 of the said judgment that when fraud is alleged, the particulars thereof are required to be pleaded specifically. A vague pleading that the registered document is tainted with fraud or is a fabricated document by itself cannot set at naught a registered instrument. It is further submitted by Mr. Gupta that neither of the courts below have after scrutinizing the evidence in the record could place a single element of fraud having been established by the plaintiff. It is then submitted by Mr. Gupta that the learned first appellate court in paragraph no.25 at page no.13 of the judgment has in no uncertain manner has categorically mentioned that since the partition was unjust, unequal, unfair and unconsciously disproportionate, hence, it can be presumed that the plaintiff has obtained these partition deeds by fraud. It is next submitted by Mr. Gupta that this presumption of fraud by the 9 Second Appeal No. 395 of 1998 learned first appellate court merely because of apportionment of the property partitioned was unequal is an act of perversity and certainly, not a ground to not rely and to give a go by to the Ext. B-1 which is a registered deed of partition. It is next submitted by Mr. Gupta that similarly the learned trial court also even after scrutinizing the evidence in the record did not find any element of fraud having been established by the plaintiff and as the distribution of ancestral lands between the parties; which according to the learned trial court was quite illegal and unjust, hence, the learned trial court has concluded that Ext. B-1 is tainted with fraud. It is next submitted by Mr. Gupta that if a presumption can be drawn that a registered instrument is obtained by fraud merely because the apportionment is unequal, the same will be contrary to the settled principle of law that apart from unequal apportionment in a registered deed of partition, if additionally any element of fraud is established then only such a registered deed of partition can be set aside and that too within the period of limitation. It is next submitted by Mr. Gupta that Article 59 of the Schedule of Limitation act is applicable in this case. The deed was executed in the year 1974. The suit was filed in the year 1991. So the suit was hopelessly barred by limitation. It is further submitted by Mr. Gupta that though neither of the courts below have specifically passed a decree declaring the Ext. B-1 which is the registered deed of partition dated 29.12.79 to be null and void but a decree of partition of the property contrary to the scheme of partition agreed to and effected between the parties to the registered deed of partition Ext. B-1 amounts and can only be granted after setting aside the registered 10 Second Appeal No. 395 of 1998 deed of partition- which has been marked Ext. B-1. It is further submitted by Mr. Gupta that the learned trial court has committed grave error by allowing the substituted defendant 2nd party No.2 to file a pleading contrary to that of the predecessor being the original defendant 2nd party No.2 that too after the examination of several witnesses in the suit is also illegal. Mr. Gupta then submits that the learned trial court has also committed grave error by allowing the defendant 2nd party No.1 to file a written statement after several witnesses were examined without any specific order for the same and the learned trial court also committed a grave error by adding two more issues at the time of delivering the judgment and never re-casted the original five issues framed vide order dated 30.11.94. It is further submitted by Mr. Gupta that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be dismissed.

#17. Mr. Manjul Prasad, learned Senior Advocate appearing for the respondents defended the judgment and decree passed by the courts below and submits that as has been held by the Hon’ble Patna High Court in the case of Arjun Mahto and others vs. Monda Mahatain and other, reported in AIR 1971 PATNA 215 that the principle of Hindu law is equality of division, but inequality of division in acreage of the lands does not invariably lead to the conclusion that there was unequal division, paragraph no.12 of which reads as under :- Mr. Mitra next argued that the Court must presume that there was no “12. partition amongst the three sons of Ritu Mahto, because a major portion of the lands was in possession of Saharai Mahto. Unequal division of the joint properties, according to Mr. Mitra, leads to an inference that there had been no partition of the properties, rather the co-sharers were in separate possession for the sake of convenience of cultivation. In paragraph 6 of the plaint, it is stated that the plaintiffs are in separate possession of less area of lands in 11 Second Appeal No. 395 of 1998 proportion to their share, whereas the defendants are in possession of much more lands than their due share. Plaintiff No. 1 has also stated the same thing in his evidence. This position is admitted by D.Ws. 1 and 4.It appears that about 60 to 70 bighas of the suit lands in mauza Berasi are in cultivating possession of the contesting defendants, while the rest is in possession of the plaintiffs and defendant No. 9. In this connection, it is to be remembered that after the death of Ritu Mahto, Saharai Mahto also acquired some properties in mouza Berasi by a patta dated the 1st May, 1901, the rental whereof is Rs. 3/1/6 including cess. The plaintiffs have not given evidence to show that the inequality in the division of lands between the ancestors of the plaintiffs and the defendants was such which may be taken to be shocking to the conscience. The principle of Hindu law is equality of division, but unequality of division in acreage of the lands does not invariably lead to the conclusion that there was unequal division of the lands at the time of their partition. The case of Siromani v. Hemkumar, 1968 BLJR 969 : (AIR 1968 SC 1299) is an authority for the proposition that the document of jethansi or jeshtbhagam is now obsolete. For the sake of argument, even if I accept that there was an unequal division of the landed properties of mauza Berasi, still to my mind there is no explanation by the plaintiffs as to why it was not objected to by Sonaram, who, according to Mr. Mitra, was present at the time of survey settlement operations. The two sons of Ritu Mahto, Jogu Mahto and Sonaram Mahto, and their descendants could not have occupied lesser area of lands in mauza Berasi for the last eighty years, had there been no partition as alleged by the defendants.” (Emphasis supplied.) The court of law can open and interfere with the partition between the coparceners of the joint Hindu family if the apportionment of the property is unequal.

#18. Mr. Prasad also relied upon the judgment of Hon’ble Patna High Court in the case of Radhamoni Bhuiyanin and others vs. Dibakar Bhuiya and others reported in AIR 1991 Patna 95, wherein also the Patna High Court relied upon the said judgment in the case of Arjun Mahto and others vs. Monda Mahatain and other (supra) and submits that in case the partition is shocking to the conscience, such partition in the absence of any document can be reopened. Hence, it is submitted that as in this case, as both the courts below have held that apportionment of the property between the parties to the suit were shocking to the conscience therefore, they have rightly decreed the suit as per the equality. Hence, it is submitted that this appeal being without any merit be dismissed. 12 Second Appeal No. 395 of 1998

#19. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law which reads as under :- (1) Whether the concurrent findings recorded by both the courts below disbelieving the partition which took place fourteen years back by virtue of registered deed of partition is perverse in law? is concerned, this Court has found that both the courts below have held that the apportionment of the property to the parties to the registered deed of partition is unequal and merely because of the inequality of division in acreage of the lands. There is no pleading of the plaintiff or any defence of the defendant No.1 about the equality of land apportioned nor there is any evidence in the record relied upon by both the courts below to come to the finding that the apportionment of the lands between the parties to the deed of partition was unequal. Both the courts below have failed to find any fact of any element of fraud having been established in execution of the registered deed of partition which has been marked exhibit B-1. After going through the pleadings of the parties, this Court finds that specific particulars of the alleged fraud have not been pleaded. Under such circumstances, this Court has no hesitation in holding that the finding recorded by both the courts below disbelieving the partition which took place 14 years back by virtue of registered deed of partition merely because of the inequality of division in acreage of the lands without any fraud being established in execution of the said registered deed of partition, is perverse in law. The first substantial question of law is answered accordingly.

#20. So far as the second substantial question of law which reads 13 Second Appeal No. 395 of 1998 as under :- (2) Whether the court of appeal has erred in law in holding that disproportionate partitioned of the joint family property gives a fresh cause of action for filing a suit for partition? is concerned, as has been held in the case of Ranganayakamma v. K.S. Prakash (supra), assuming for the sake of argument that court can open and interfere with the apportionment on the ground of the inequality in the apportionment of the property to the parties to a registered deed of partition still as already indicated above in the foregoing paragraphs in this judgment itself that, such finding of fact of inequality in apportionment of the joint property arrived at by both the courts below is solely based on division in acreage of the lands, ignoring the settled principle of law that merely because of the inequality of division in acreage of the lands cannot be interpreted as inequality, in the apportionment of the property; such finding of fact of inequality in apportionment, is not sustainable in law in the absence of any pleading or evidence regarding the value of the properties apportioned. Further this partition having taken place through a registered deed of partition merely because apportionment was unequal by itself is not a ground to give a fresh cause of action for filing a suit of partition as the parties have voluntarily acceded to such partition way back about 12 years prior to filing of the suit. Simply on a fine morning after twelve years if it dawns upon them, the partition which is effected to between them and the other coparceners is unequal, without any element of of fraud involved, certainly the same cannot give a fresh cause of action for filing the suit for partition, more so because the Limitation Act, 1963, extinguishers 14 Second Appeal No. 395 of 1998 such cause of action. The second substantial question of law is answered accordingly.

#21. In view of the discussions made above, this Court is of the considered view that the judgment and decree of both the courts below i.e. the judgment and decree dated 20.06.1998 passed by the learned 2nd Additional District Judge, Godda in Title Appeal No. 6/98 and the judgment and decree dated 12.12.1997 passed by the learned Subordinate Judge-3rd, Godda in Title Suit No.37 of 1992 being not sustainable in law is set aside and the Title Suit No.37 of 1992 of the plaintiff is dismissed on contest.

#22. In the result, this appeal is allowed on contest but under circumstances without any costs.

#23. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 7th November, 2022 AFR/ Sonu-Gunjan/- 15