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2012 Supreme(Pat) 851
IN THE HIGH COURT OF JUDICATURE AT PATNA
MUNGESHWAR SAHOO, J.
Smt. Bijay Laxmi Kumar & Ors – Appellants.
Versus
Most. Shyama Devi & Ors – Respondent
First Appeal No.282 of 1996
Decided On : 3.7.2012
For the Appellant/s :Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. R. K. Shukla, Advocate Mr. Purushotam Jha, Advocate Mr. Satish Chandra Jha No.3.
For respondent No.12 & 13: Mr. Durganand Jha.
For respondent No.20 to 23:Mr. J. P. Shukla, Sr. Advocate Mr. Kalikant Jha, Advocate Manisha Jha.
For respondent No.25:Mr. Shivnandan Roy, Sr. Advocate Mr. Satyendra Narayan Singh Mr. S. P. Singh.
Headnote:Hindu Law-Partition-So far Hindu Law is concerned, the general practice is that in partition suit all the properties should be included in the partition suit but if there is partial partition, on that ground alone, the plaintiff cannot be non suited-The learned trial court wrongly dismissed the plaintiff's suit on the ground of partial partition. (Para 20)
Hindu Law-Partition-Plaintiff claiming partition-However, in sale deeds executed during the pendency of the suits, he admitted the partition-Memorandum of partition proved as Ext.1-Presumption regarding the jointness will not be available-It is settled law that once it is proved that there had already been partition with respect to some property then the presumption will be that there was complete partition of all the properties. (Para 30)
Indian Evidence Act, 1872-Section 18-Admission by party interested in subject matter of the suit-The three brothers of the plaintiff admitting that there had already been partition of the suit property-These admissions of 3 Co-shares who had some and similar interest in the suit property is admissible and relevant for deciding the fact of partition-These admissions will go against the plaintiff. (Paras 33 & 35)
Code of Civil Procedure, 1908-Order 41, Rule 22-Cross objection-The Rule provides that the cross objection must be filed within one month from the date of service on the defendant of notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow-Therefore, the cross objection prior to admission of the appeal will not be valid cross objection-In the present case the respondents prayed for their share in the written statement supporting the plaintiff's case, which was rejected by the court below-They could have independently preferred appeal against that part of the decree which was appealable-In view of the settled proposition of law regarding filing of cross objection, the defendants No.10 to 13 now cannot be allowed to challenge that part of the decree of the trial court which is against them and which was independently appealable at the instance of these respondents-However, the respondent no.25 can challenge the finding regarding jointness decided in favour of plaintiff without filing cross objection as the finding cannot be termed as a part decree. (Paras 24, 27 & 42)
Hindu Succession Act, 1956-Amendment Act, 2005-Section 6-Entitlement of daughter as coparcener-The provision will apply only if there had been no partition-If there is complete partition to amendment, the same cannot be reopened. (Para 44)
AIR 2012 SC 169; AIR 1961 SC 1077; AIR 1983 SC 409; AIR 1970 Raj 234; AIR 1976 AP 81; 2010 (7) SCC 717 para 24; AIR 1999 SC 3571; 2007 AIR SCW 766; 2012 AIR SCW 807; 2003 (9) SCC 606 paras 9 to 12; AIR 1952 Pat 382; AIR 1946 Pat 278; AIR 1981 Pat 111; 2012 (2) PLJR 198-Referred to.
Mungeshwar Sahoo, J.
1. The plaintiffs have filed this First Appeal against the Judgment and Decree dated 14.6.1996 (decree signed on 5.7.1996) by Sri Md. Atitullah Ansari, learned Sub Judge IX Patna in title partition suit No.497 of 1983 / 117 of 1995 dismissing the plaintiff’s suit for partition.
2. The plaintiff-appellants filed the aforesaid title partition suit No.497 of 1983 / 117 of 1995 claiming 11/54th share in the suit property described in Schedule II and further prayed for grant of permission to purchase the right, title and interest of defendant sixth party in the suit property described in Schedule II which has been purchased by defendant sixth party from defendant No.5 under sale deed No.7083 dated 19.8.1983 on the price fixed by the Court and the defendant sixth party may be directed to execute sale deed on receipt of the consideration money. The plaintiff also prayed for permission to purchase right, title and interest of defendant No.16 and his wife Smt. Rekha Devi which they purchased from defendant 1st party by sale deed dated 14.12.83, 31.5.84 and also to purchase the share of defendant No.8 sold to defendant No.15 through registered sale deed dated 26.7.1985. After granting the said relief, the plaintiff share to the extent of 11/54th may be partitioned.
3. The plaintiff claimed the aforesaid relief on the facts which may be stated in brief which are relevant and necessary for the purpose of decision of this First Appeal. The common ancestor Rai Bahadur Pandit Jayanand Kumar being the karta purchased 1 biggha 6 katha 11 dhur in plot No.1173, 1174 and 1175 under Khata No.5 Tauzi No.5090 in Mauza Dujra P.S. Kotwali Distt. Patna by registered sale deed dated 5.4.1938 out of joint family fund. He died in jointness with his 3 sons and grand sons in the year 1940. There was a private partition of the entire property between the sons and grand sons of Rai Bahadur Pandit Jayanand Kumar in the year 1952. In the said partition, the three sons of Pandit Rai Bahadur Jayanand Kumar, i.e., Satyanand Kumar, Nityanand Kumar and Krityanand Kumar were allotted 1/3rd share along with their sons. The entire land purchased under sale deed dated 5.4.1938 in plot No.1173, 1174 and 1175 described in Schedule I fell in the share of Satyanand Kumar. Satyanand Kumar and his sons constructed double storied house on the said land in the eastern side and still major portion in the western side is used as Sahan. The house constructed forms one block which has been described in Schedule II.
4. The further case of the plaintiff is that Pandit Satyanand Kumar died on 11.3.1978 in state of jointness and the plaintiffs and defendant 1st party to fourth party came in joint possession of the joint family properties including the suit property. Thereafter, the 4 sons of Satyanand Kumar, namely, Gayanand Kumar, Krishnanand Kumar, the plaintiff Ramanand Kumar and Durgnand Kumar separated in mess and business since 4 years prior to institution of the suit and started cultivating the lands according to convenience but there had been no partition between them. The share of defendant fourth party and fifth party are in charge and under management of the plaintiff and defendant-Ist-party to defendant third party. Therefore, the entire joint family property need not be partitioned.
5. The Further case of the plaintiff is that there are 4 flats in double storied building which form one block. Two flats are in ground floor and two flats are on the first floor. The electric meters of all the flats are in the room of the plaintiff. Plaintiff No.1 is residing in the suit house with his family members whereas the defendant-Ist party to fifth party are not living in Patna. The plaintiff No.1 being the Advocate of the Patna High Court is in charge of the entire land and house in suit. He inducted tenants on monthly rent and is realizing rents from them. The defendant 1st party to fourth party are residing in the ancestral village home. It is stat
