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1993 Supreme(Pat) 435
PATNA HIGH COURT
Sachchidanand Jha, J.
Shambhoo Natb Sinha
Versus
Ramchandra Prasad
First Appeal No. 219 of 1976 ;
Decided On : SEPTEMBER 26, 1993
In a partition suit, the onus lies on the plaintiffs to prove that the property in suit continued to be joint despite the partition, and that there was unity of title and possession between the parties.
Headnote:
PARTITION - PARENTAGE - SEPARATION - UNITY OF TITLE AND POSSESSION - EVIDENCE ACT, SECTION 50 - HINDU SUCCESSION ACT, 1956 - SECTION 14 - HINDU LAW - JOINT FAMILY - COPARCENARY PROPERTY - RE-UNION - PRESUMPTION OF JOINTNESS - DIVISION IN STATUS - DIVISION BY METES AND BOUNDS - RENUNCIATION OF INTEREST - EFFECT - PARTITION - EFFECT - RE-UNION IN ESTATE - COPARCENARY PROPERTY - JOINT FAMILY PROPERTY - DIFFERENCE - MEMORANDUM OF PARTITION - ADMISSIBILITY - IDENTIFICATION OF PROPERTY - EXCHANGE OF LANDS - COMPENSATION - MUNICIPAL RECEIPTS - RENT RECEIPTS - COLLATERAL PURPOSE - ONUS OF PROOF.
Fact of the Case:
Plaintiffs filed a suit for partition of joint family property. Defendant No.3, who claimed to be the daughter of Sheo Prasad Lal, one of the brothers of the plaintiffs, contested the suit. The defendants denied the plaintiffs' case of separation between Darshan Lal and Sheo Prasad Lal in 1934 and claimed that the two brothers remained joint throughout. They also asserted that Mandodari Kuer, the wife of Sheo Prasad Lal, had predeceased him and that defendant No.3 was not entitled to any share in the property.
Finding of the Court:
The trial court held that defendant No.3 was the daughter of Bhagwati Sahai, another brother of the plaintiffs, and not Sheo Prasad Lal. It also held that Mandodari Kuer had predeceased Sheo Prasad Lal and that no partition inter se between Sheo Prasad Lal and Darshan Lal took place. The court further held that the suit property was also the subject-matter of the partition of 1932 and there was no unity of title and possession over the same. On these findings, inter alia, the court dismissed the suit.
Issues: 1. Whether defendant No.3 was the daughter of Sheo Prasad Lal and whether Mandodari Kuer predeceased Sheo Prasad Lal? 2. Whether the parties have unity of title and possession over the properties in suit?
Ratio Decidendi: 1. The court held that defendant No.3 was the daughter of Bhagwati Sahai and not Sheo Prasad Lal, based on the following evidence: a. The preponderance of evidence in favor of the defendants' case on the point of parentage of defendant No.3. b. The opinion of witnesses having special means of knowledge about the relationship between defendant No.3 and Sheo Prasad Lal or Bhagwati Sahai, as per Section 50 of the Evidence Act. c. The fact that defendant No.3 was born in 1906, while Bhagwati Sahai died in 1926, making it more likely that she was his daughter. 2. The court held that there was no unity of title and possession between the parties as regards the suit property, based on the following evidence: a. The presumption of jointness under Hindu Law was rebutted by the plaintiffs' failure to prove that the property in suit continued to be joint despite the partition of 1932. b. The memorandum of partition (Ext. D) showed that the suit property was included in the partition of 1932 and was allotted jointly to the share of Darshan Lal and Sheo Prasad Lal. c. The parties had acted on the exchange of lands as per the memorandum of partition and had received compensation from the State for the respective areas.
Final Decision: The court dismissed the appeals filed by the plaintiffs and defendant No.3, upholding the trial court's decision to dismiss the suit for partition.
S. N. Jha, J.
1. -these appeals by the plaintiffs and defendant No.3 arise out of a suit for partition. They have been heard together and are disposed of by this common judgment.
2. The common ancestor of the parties Baijnath Lal had five sons darshan Lal, Shep Prasad Lal, Surjan Lal, Bhagwati Sahai and Mathura prasad. The plaintiffs represent the branch of Mathura Prasad, who in fact, was the original plaintiff but died sometime after the institution of the suit. Defendent Nos 1 and 2 represent the branch of Darshan Lal. There is a head on controversy about the parentage of defendant No.3 radha Rani, since dead. According to defendant Nos.1 and 2, she was the daughter of Bhagwati Sahai while according to the plaintiffs, Bhagwati sahai died issueless and she was the daughter of Sheo Prasad Lal.
3. According to the plaintiffs case, Bhagwati Sahai died in state of jointness with his four brothers. There was partition in the family in 1932. Surjan Lal and Mathura Prasad got 1/4 share each in the joint-family properties. Darshan Lal and Sheo Prasad Lal, however, decided to live together, perhaps, because their wives were full sisters. They together got the rest 1/2 share. According to the plaintiffs, they constituted a joint family themselves. According to the plaintiffs further, the items of property detailed in Schedule I of the plaint which are the suit properties were left joint between the parties for the sake of convenience. It is said that Shep Prasad Lal and Darshan Lal too separated in 1934. Sheo Prasad lal is said to have died in 1942 leaving behind his widow Mandodari kuer and Radha Rani defendent No.3. Mandodari Kuer came in possession of the estate of Shep Prasad. After her death in 1957, defendent no.3 being her only heir inherited the property. According to the plaintiffs, Mathura Prasad had in the meantime purchased the entire l/4th share of Surjan Lal under sale deed dated 12-9-47 and thus his share in joint-family property became half. They experienced inconvenience in joint possession and management of the suit property and in the circumstances instituted the suit claiming 1/2 share in the property. The rest half, according to them, belongs to equally to Darshan Lai and defendants 1 and 2 on the one hand and defendants 2 and 3 on the other.
4. Defendent No.3 supported the plaintiffs case. The contest came from defendent Nos.1 and 2. Apart from the formal objections regarding maintainability of the suit and defect in the frame of the suit, the defendants denied the plaintiffs case of separation between Darshan Lal and Sheo Prasad in 1934. According to them, the two brothers remained joint throughout. According to them further, Mandodari had predeceased her husband Sheo Prasad who died in 1942 in state of jointness of Darshan lal. As regards defendant No.3, they took the plea that she is not necessary party for the purpose of the instant suit inasmuch as she being daughter of Bhagwati Sahai, who had died in 1926, cannot claim any right, int erest or share in the property which upon his death had devolved on the four surviving brothers by survivorship. The defendants asserted that 1932 partition was complete in all respects and nothing was left joint between the parties. According to them, three separate lists containing items of property allotted jointly to Darshan Lal and Sheo Prasad and separately to Surjan Lal and Mathura Prasad were prepared by way of memorandum of partition. The suit property was allotted exclusively to the defendants share except portion of plot No 797 which the plaintiff got in exchange of land which they had got in that partition but gave to the plaintiffs in exchange. They claimed to be in possession of the entire suit property described three lots in the Schedule I. The details of their case itemswise will be stated later at the appropriate place in the judgment. Thus, the defendants asserted that there is no unity of title and possession between the parties in respect of the sui
