Back
1985 Supreme(Pat) 266
PATNA HIGH COURT
P.S.Mishra, J.
Ganesh Singh
Versus
Widow Of Sibbaram Singh
A.F.O.D. No. 561 of 1968 ;
Decided On : SEPTEMBER 18, 1985
The presumption of jointness in a Hindu family and the burden of proof on the party asserting the validity of a document.
Headnote:
HINDU LAW - COPARCENARY - SEVERANCE - BURDEN OF PROOF - EVIDENCE ACT, 1872 - SECTIONS 35, 91, 92, 101 - PRESUMPTION OF JOINTNESS - SLIGHT INDICATION OF SEPARATION INSUFFICIENT - ZARPESHGI DEED - NOT CONCLUSIVE EVIDENCE OF SEVERANCE - ORAL EVIDENCE - INSUFFICIENT TO DISPLACE PRESUMPTION OF JOINTNESS - MAINTENANCE - RIGHT OF WIDOW TO MAINTENANCE - SALE DEEDS EXECUTED BY WIDOW - VALID EXECUTION PROVED - CONSIDERATION PAID - NO TITLE CONVEYED - PLAINTIFFS ENTITLED TO DECREE FOR RECOVERY OF CONSIDERATION MONEY FROM DEFENDANTS.
Fact of the Case:
Plaintiffs sued for declaration of title in Schedule 1 properties and in the alternative for partition of the properties described in Schedule 2 of the plaint. The original defendant claimed that the plaintiffs' vendor had no interest in the properties on or before the date of the sale deeds and that the plaintiffs had neither any title into Schedule 1 properties nor equity to seek partition of the lands described in schedule 2.
Finding of the Court:
The court found that the plaintiffs failed to prove that there was any partition between the coparceners and/or that the coparcenery had ceased to exist. The court also found that the plaintiffs failed to prove that they had paid consideration for the sale deeds executed by their vendor.
Issues: 1. Whether the plaintiffs had proved that there was any partition between the coparceners and/or that the coparcenery had ceased to exist? 2. Whether the plaintiffs had proved that they had paid consideration for the sale deeds executed by their vendor?
Ratio Decidendi: 1. The court held that the plaintiffs had failed to prove that there was any partition between the coparceners and/or that the coparcenery had ceased to exist. The court relied on the presumption of jointness in a Hindu family and the fact that the plaintiffs had not produced any evidence to rebut this presumption. 2. The court held that the plaintiffs had failed to prove that they had paid consideration for the sale deeds executed by their vendor. The court relied on the provisions of the Evidence Act, 1872, which place the burden of proof on the party asserting the validity of a document.
Final Decision: The court dismissed the plaintiffs' suit for declaration of title in Schedule 1 properties and for partition of the properties described in Schedule 2. However, the court allowed the plaintiffs' claim for recovery of the consideration money paid by them to their vendor.
P. S. Mishra, J.
1. The plaintiff-appellants suit for declaration of title in schedule 1 properties and in the alternative for partition of the properties described in Schedule 2 of the plaint has been dismissed by the 2nd Additional subordinate Judge, Chapra.
2. By three separate sale deeds executed on 26-6-1960, Rampati Kuer transferred Schedule 2 lands in favour of the plaintiffs. The plaintiffs accordingly claimed title to Schedule 2 properties. The original defendant Shiv baran Rai, her brother-in-law, however, in his written statement has claimed that Rampati Kuer had no interest in the properties on or before 26-6-1960 and accordingly the defendant has claimed that the plaintiffs have neither any title into Schedule 1 properties or equity to seek partition of the lands described in schedule 2.
3. The facts are not in controversy. Bihari Rai died leaving behind three sons, Ram Kishun Rai, Keshwar Rai and Sheo Baran Rai. Ram Kishun rai died leaving behind his widow Mostt. Parkalo Kuer. Mostt. Parkalo kuer also has died. Keshwar Rai died leaving behind Ramrati Kuer, the plainitffs vendor.
4. According to the plaintiffs Ram Kishun Rai, Keshwar Rai and Shiv baran Rai had separated in mess and properties and accordingly after Ram kishun Rais death Mostt Parkalo Kuer held the properties belonging to his share and after Parkalos death Keshwar Rai and Shiv Baran Rai together inherited ram Kishun Rais share. After Keshwar Rais death Ramrati Kuer, his widow, inherited his interests in the property. She became absolute owner after the hindu Succession Act came into force. She, by executing three sale deeds in favour of the plaintiffs for a consideration of Rs.2,000/ each, conveyed schedule 1 lands to them. They have, accordingly, acquired title to Schedule 1 lands. By amending the plaint they have also said that in case it is found that there has been no partition by mates and bounds between Ramrati Kuer and shiv Baran, the estate should be partitioned half and half and a decree accordingly passed.
5. The defendant, however, has maintained that Ram Kishun Rai died in the state of jointness and his surviving brothers, Keshwar Rai and Shiv Baran inherited the properties of his share as coparceners. Keshwar Rai also died in the state of jointness and on his demise Shiv Baran Rai succeeded to the estate as the sole survining coparcener.
6. Ram Kishun Rai died before the revisional survey. In the revisional survey, however, his wife Parkalo Kuer was shown to own the properties of the joint family along with Keshwar Rai and Shiv Baran Rai. She, however, died and it is not in dispute that Keshwar Rai and Shiv Baran Rai succeeded to the interests of Ram Kishun Rai. Keshwar Rai died in the year 1930 or 1931, that is to say, before the Womens Right to Property Act, 1937 came in force. If the coparcenery was in existence on Keshwars death, Shiv Baran succeeded as the sole surviving coparcener. If, however, the coparcenery was not in existence and Keshwar Rai died in the state of separation from his brother Shiv Baran rai, his widow Ramrati Kuer succeeded to his estate.
7. The learned Subordinate Judge has found that the plaintiff have failed to prove that there was any partition between the coporceners. and/or that the coparcenery had ceased to exist and having so found rejected the plaintiffs case of any title or interest in the joint estate of the family of Keshwar Rai and Shiv baran Rai in favour of Ramrati Kuer. He has, accordingly, dismissed the suit either for declaration of title it Schedule 1 lands in favour of the plaintiffs or to partition Schedule 2 properties.
8. An issue on the question, whether the three sale deeds dated 26-6-1960 executed by Ramrati Kuer in favour of the plaintiffs were valid for consideration or not, has also been gone into by the learned Subordinate Judge. He has held that the plaintiffs have not been able to prove any payment of consideration and, thus, failed to prove that the sale deeds have been v
