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PATNA HIGH COURT
B.P.Sharma, J.
Dinanath Yadav
Versus
Kusum Devi
Appeal From Appellate Decree No. 562 of 1993 ;
Decided On : JANUARY 21, 2000
Partition - Ancestral Property - Hindu Mitakashra family - Joint family income - Acquisitions - Jointness of family - Presumption of jointness - Onus of proof - Complete partition by metes and bounds - Separate acquisitions - Mode of partition - Decree for partition
Fact of the Case:
The plaintiffs filed a suit for partition of ancestral properties jointly belonging to both the parties. The defendants claimed that there was a previous partition between the parties with respect to the suit property.
Finding of the Court:
The trial Court held that the plaintiffs were not entitled to partition as claimed, based on the finding that the parties were dealing with the properties separately from time to time.
Issues: The main issues were whether the suit was maintainable, whether the plaintiffs had valid cause of action, and whether the suit was barred by limitation, waiver, acquiescence, and estoppel.
Ratio Decidendi: The court held that the presumption of jointness in Hindu Mitakshara family becomes weaker with the passage of time. It found that though the parties were dealing with the properties separately, there was no complete partition by metes and bounds. The mode of partition was not disclosed, and the separation of parties in mess and business could not be treated as proof of complete partition.
Final Decision: The appeal was allowed in part, and the judgment and decree of the trial Court were set aside. The plaintiffs were decreed to be entitled to partition of half share in Schedule I property.
B.P.Sharma, J.
1. The present appeals has been filed against the judgment and order of the subordinate judge II, Danapur in Title suit No. 128/71 on the 9th of july 1993 and 23rd of july 1993 respectively. The plaintiffs had brought a suit for partition of the properties separately described in two Schedules of the plaint. The first Schedule is said to be the ancestral property jointly belonging to both the parties who are the plaintiffs and the defendants having common ancestor. The second Schedule relates to the properties acquired by the Karta of the family in the names of different members of the family including the plaintiffs.
2. According to the plaintiffs, two brothers, namely, Tulsi Yadav and Gopi Yadav were the sons of one Kauri Yadav of village Sahar-Rampur in P.S. Naubatpur of Patna District, fulsi Yadav died leaving behind his son Faujdar Yadav and Gopi Yadav died leaving behind his son Ramlal Yadav. Faujdar Yadav also subsequently died leaving behind his sons, namely, plaintiff No. 1 Hawaldar Yadav, plaintiff No. 2 Radha Yadav and plaintiff No. 3 Bhunasi Yadav, who also died subsequently in the year 1972 issue-less. Hawaldar Yadav had three sons, namely, Dina Nath (Plaintiff No. 4), Sidhnath (Plaintiff No. 5) and Ganga Sagar (Plaintiff No. 6). Dina Nath had two sons, Satyadeo (Plaintiff No. 8) and Satyender (Plaintiff No. 9). On the other hand, Ramlal Yadav had three sons, Sukhlal (defendant No. 1), Sarjug (defendant No. 2) and Laldev (defendant No. 3). Sukhlal was issue-less. Sarjug had two sons, namely, Dip Narayan (defendant No. 4) and Tandeo (defendant No. 5). Defendant No. 6 happens to be the son of Dip Narayan (defendant No 4). Defendant No. 3 Laldev had four sons, namely, defendant No. 7 Prabhansh, defendant No. 8 Vijaya, defendant No. 9 Brajendar and defendant No. 10 Nepali. Subsequently, one Baby son of Prabhansh has also been added as defendant No. 11. According to the plaintiffs, Tulsi Yadav and Gopi Yadav happened to be the full brothers and constituted joint Mitakashra Hindu family. It is clear that the plaintiffs are the descendants of Tulsi Yadav and defendants are the descendants of Gopi Yadav. All of them happened to be the members of a Joint Mitakashra family. Now, Sukhlal Yadav being the eldest brother and cousin brother in the family worked as Karta after the death of his father who was Karta during his life time. The family owned and possessed sufficient land which was canal-irrigated and all of them worked on the land to get the maximum out-turn and the family had made acquisition of some land from time to time. It is further stated that all the joint family income was retained by defendant No. 1 Sukhlal as Manager and Karta of the joint family. It is also further stated that all the papers of the joint family were in possession and custody of defendant No. 1 and he used to keep the entire income of the joint family and invest the money in business also in improper manner. Further, it is stated that the plaintiffs came to know that a sum of Rs. 30,000.00 was accumulated by defendant No. 1 which he kept partly in Bank and rest in hand in cash. Since the entire property was acquired by the joint family, the plaintiffs have also got share in the said property. Thus, according to the plaintiffs, half share in Schedule properties belonged to the plaintiffs and the rest half belongs to the defendants. It is asserted that the defendants in collusion with one another went on usurping and misappropriating the entire savings and the properties in the suit. The defendants also did not take care of the plaintiffs and behaved in a manner in disregard of the plaintiffs interest. The plaintiffs, therefore, felt annoyed and demanded partition of the property, but the defendants refused to partition in the property and ultimately when they refused to do so on 21.6.1971, the plaintiffs brought this suit for partition.
3. Two sets of written statements were filed; one on behalf of defendants Nos. 3 and
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