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2006 Supreme(Pat) 1270
PATNA HIGH COURT
Syed Md.Mahfooz Alam, J.
Gauri Shankar Prasad Singh
Versus
Baid Nath Prasad Singh
Appeal from Appellate Decree No. 135 of 1989 ;
Decided On : DECEMBER 19, 2006
Headnote:Code of Civil Procedure, 1908-Section 100-Second Appeal-Court while sitting in second appeal has no jurisdiction to interfere with the findings of the first appellate court unless the court finds that the findings of first appellate court are perverse due to non-consideration or misreading or misinterpretation of oral as well as documentary evidence on record. (Para 10)
1959 SC 57, 2005 (2) BBCJ IV Page 421-Relied upon.
Hindu Succession Act, 1956-Section 14-After enactment of Hindu Successeion Act, 1956 the widow became absolute owner of the property acquired through her deceased husband-Both the courts below found that during her life time, the widow alienated the properties standing in her name by executing sale deeds and Arpanama and she exercised her full right and interest with respect to the properties allotted to her. (Para 15)
AIR 1977 SC 1944-Referred to.
Code of Civil Procedure, 1908-Order VI Rules 1, 14 & 15-Order VI Rule I defines pleading that it shall mean plant or written statement and it does not include any petition or rejoinder-Every pleading must be signed by the parties and pleader and it must be verified by the parties under rule 15-Such procedure is not followed in rejoinder petition and the statement made in it can not be considered to be pleading in suit and any evidence adduced in this regard is inadmissible. (Paras 19 & 20)
Hindu Adoption and Maintenance Act, 1956-Section 4-Old Hindu law regarding the adoption based on religious text rites as well as custom or usage has been abrogated-But admittedly Hindu Adoption and Maintenance Act, 1956 has got no retrospective effect-Adoption had taken place in the year 1937 prior to coming into force of the said Act and as such it cannot be held that the deed of adoption dated 2.8.75 which had only confirmed the previous adoption was viola tine of Section 4 of the Act. (Para 26)
Hindu Law-Adoption-Karta Putra-Adoption of Karta Putra is prevalent in Mithila Area only-Admittedly the parties are not the residents of Mithila area, but as there was no pleading on the part of the plaintiff that the intervenor-Defendant was not appointed as Karta Putra by widow and there was no custom or usage in .the family to adopt any person as Karta Putra-What is necessary to prove the appointment of Karta Putra is that the consent of the adopted boy was taken and that his appointment was done with the sole object of performing exequial rights of the adopter-There is overwhelming oral as well as circumstantial evidence on record that exequial rights of adopter was performed by the intervenor-defendant-It is well settled law that for appointment of Karta Putra no special formality is required (Para 27)
AIR 1965 Pat 351, AIR 1933 Pat 165-Referred to.
1. This Second Appeal has been preferred against the judgment and decree dated 3.01.1989, passed by Sri Basudeo Sahay, 3rd Additional District & Sessions Judge, Saharsa, in Title Appeal No. 20 of 1981 whereby he has been pleased to reverse the judgment and decree dated 14.09.1981 passed by Sri Chakrdhar Rai. Subordinate Judge, Saharsa, in Title Suit No. 31 of 1975 and after allowing the appeal dismissed the suit of the plaintiffs.
2. The brief facts of the case is that appellant Gauri Shanker Pd. Singh and Pachkhori Singh, who were plaintiffs in Title Suit No. 31 of 1975 filed suit for partition of the properties described in Schedule of the plaint claiming 1/3rd share and for declaration that the original defendant Most Bindabati was entitled for maintenance only. During the pendency of the suit, original defendant Most. Bindabati died and thereafter one Baid Nath Pd. Singh filed petition for impleading him as intervenor defendant. The said petition was allowed and he was made intervenor defendant and at present he is contesting the suit. After the death of Bindabati and after addition of intervenor-defendant the plaintiffs filed amendment petition and claimed that they along with the defendant 1st set are entitled to inherit the properties of Bindabati being the nearest agents. The plaintiffs suit was decreed and the share of the plaintiffs was declared as 1/3rd in Schedule I and II properties on the basis of the finding that the plaintiffs and defendant 1st set are nearest agent of deceased Most. Bindabati Devi. But in appeal the above findings were reversed and the plaintiffs suit was dismissed.
3. According to the case of the plaintiffs. One Tek Narain Singh of village Pastpar, District Saharsa was the common ancestor of the plaintiffs and defendant Nos. 1 to 7. He had two wives. From his first wife he had one son Badri Narain Singh and from his second wife he had two sons, namely, Ram Naraian Singh and Dharam Narain Singh. Ram Narain Singh separated from his two brothers long ago and on partition he was allotted a separate Tauzi bearing No. 5780 of village Pastpar. However, he died issueless. On his death, his property devolved upon his brothers. After some time Badri Narain Singh and Dharm Narain Singh also separated, Badri Narain Singh died before cadestral survey leaving behind him his three sons namely. Maha Prasad Singh, Gore Prasad Singh and Ram Prasad Singh, who continued to be joint, Gore Prasad Singh died before cadestral survey leaving behind him his only son Harihar Prasad Singh. Ram Prasad Singh also died in the estate of jointness with his brother Maha Prasad Singh and nephew Harihar Prasad Singh along with his widow Ram Payari Devi. The property of Ram Prasad Singh devolved on Maha Prasad Singh, his full brother. The widow of Ram Prasad Singh, namely, Ram Payari Devi was allowed to receive maintenance only. The said Ram Payari Devi died in the year 1962. Maha Prasad Singh died leaving behind him one son Ganga Prasad Singh. The said Ganga Prasad Singh had three sons, namely, Sarjug Prasad Singh (defendant No. 1), Purshottam Singh (defendant No. 2) and Gauri Shankar Prasad Singh (plaintiff No. 1). Saryug Prasad Singh had a son, namely, Sunil Singh (defendant No. 3). Purshotam Singh had four sons, namely, Vinay Kumar Singh (defendant No. 4), Vinit Kumar Singh (defendant No. 5), Anit Kumar Singh (defendant No. 6) and Arbind Kumar Singh (defendant No. 7), Gauri Shankar Prasad Singh has a son, Panchkauri Singh, who is plaintiff No. 2 in the suit.
Further case is that in the year 1913, Harihar Singh died in the estate of jointness with his brother Ganga Prasad Singh and his nephew (all sons of Ganga Prasad Singh). He died leaving behind him his widow Most. Bindabati Devi, who was impleaded as defendant No. 8 in the suit but as she died during the pendency of the suit, her name was expunged. After the death of Harihar Prasad Singh, Ganga Prasad Singh, the father of plaintiff No. 1 inherited his entire prope
