The binding effect of recitals in a deed and the requirement to plead and prove deliberate exclusion of property from partition to be retained as joint family property.

Jai Narayan Rai, J.

Heard Mr. K.N. Choubey, learned senior counsel for the appellants and Mr. S.N. Singh, learned counsel for the respondents.

2. The defendant 4th set in the suit are the appellants in the present appeal against the judgment and decree of reversal.

3. The plaintiffs filed the suit for partition praying for a preliminary decree of partition with regard to 5 1/3rd annas share over the suit property.

4. The facts in detail need no notice for the purpose of present second appeal and suffice it to record that the genealogical table is admitted between the parties from which it transpires that one Kanhaiya Rai had two sons Triloki Rai and Bhothari Rai. Triloki Rai had a son Fulchand Rai whereas Bhothari Rai had three sons namely Chandra Mani Rai, Deep Narayan Rai and Braj Kishore Rai. The original plaintiff was Deep Narayan Rai who filed the suit with regard to the property in the village of Maharpur with specific assertions that there had been partition between the parties for other family properties and the fact of said partition was recorded in the registered deed of memorandum of partition dated 02.07.1968. However, it was the case of the plaintiff that in the deed of memorandum of partition wrong recital at the instance of Fulchand Rai and Chandra Mani Rai was made with regard to the suit property (property of Maharpur village) to the effect that the suit property was the self acquired property of Fulchand Rai and Chandra Mani Rai.

5. The defendant 4th set contested the suit by filing written statement and leading evidence. It was the case of the defendant 4th set that there had already been a partition in the family with regard to the family property and the suit property was the self acquired property of Fulchand Rai and Chandra Mani Rai which fact was rightly mentioned in the registered deed of memorandum of partition dated 02.07.1968.

6. It would be apposite to mention that during the pendency of the suit the plaintiff prayed for amendment in the plaint which was allowed. By the amendment the plaintiff deleted the property of the share of Fulchand Rai from the subject matter of the suit and confined his prayer for partition of the remaining property only.

7. The trial court framed altogether 11 issues out of which the issue nos. VI, VII and VIII were the material issues pertaining to the dispute with regard to the nature of the suit property being the joint family property or the self acquired property of Fulchand Rai and Chandra Mani Rai. The trial court returned the findings on those issues in favour of the contesting defendants and dismissed the suit. In appeal by the plaintiff (since deceased, through LR), the appellate court below has set aside the judgment and decree passed by the trial court, allowed the appeal and granted the decree for partition as prayed by the plaintiff.

8. This appeal has been admitted for hearing on the following substantial questions of law:-

(i) Whether when the plaintiffs have accepted in the plaint the fact of execution of a memorandum of partition dated 02.07.1968 (Ext. B), the appellate court below has the jurisdiction to make out a third case by holding the said document to be suspicious and not operative document?

(ii) Whether the appellate court below while reversing the judgment and decree of the trial court has made out a third case and therefore its judgment has become vulnerable?

9. While criticizing the impugned judgment, Mr. Choubey, learned senior counsel for the appellants has submitted that the appellate court below has passed the impugned judgment after recording the findings in favour of the plaintiff on mere surmises and conjectures. It has been contended that the original plaintiff Deep Narayan Rai was admittedly one of the executants of the deed of memorandum of partition dated 02.07.1968 (Ext. B) and as such, the relief against the said document was required to be sought before seeking the relief for partition of the suit property. Elaborating his submiss