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High Court Of Jharkhand
Judgename : NARENDRA NATH TIWARI, J.
SARASWATI SINGH - Appellant
Versus
BRIJ SHANTIMANI - Respondents
F. A. 18 Of 1999
Decided On : 09/14/2006
PARTITION SUIT - [JOINT FAMILY PROPERTY] - [SELF ACQUIRED PROPERTY] - [FAMILY SETTLEMENT] - [JOINT POSSESSION] - [UNITY OF TITLE] - [DECREE FOR PARTITION] - [SUIT PROPERTIES] - [DESCRIPTION OF PROPERTY] - [IMPLEADING PARTY] - [ADMISSION] - [EVIDENCE] - [LEGAL EVIDENCE] - [BURDEN OF PROOF] - [PRESUMPTION] - [JOINT FAMILY NUCLEUS] - [TITLE IN LAND] - [ESTOPPEL] - [ADMISSION AS CONCLUSIVE EVIDENCE] - [CHANCE TO EXPLAIN ADMISSION] - [DENYING/TAKING AWAY VALUABLE RIGHT OR TITLE IN IMMOVABLE PROPERTY] - [STATUTE] - [JOINTNESS OF PROPERTY] - [FAILURE TO PROVE JOINTNESS] - [RIGHT, TITLE AND INTEREST] - [OPPORTUNITY TO DEFEND] - [TRANSFER OF TITLE] - [DIVESTING TITLE] - [PERVERSE FINDING] - [MODIFICATION OF JUDGMENT AND DECREE] - [FINAL DECREE] - [COSTS]
Fact of the Case:
Plaintiff filed a partition suit, praying decree for partition of 3/4th share in item Nos. 1 and 2 and 1/4th share in item Nos. 3, 4, 5, 6. 7. 8, 9 and 10 of the Schedule appended to the plaint and also for a decree for rendition of account of item Nos. 5, 6, 7 and 9 of the schedule of the plaint against the defendant No. 1, cost of the suit and for any other reliefs. The suit properties were described in the Schedule of the plaint as Col- lows :- schedule (1) Land, building in M. S. Plot No. 550 and 551, Holding No. 253, Ward No. 1, Circle no. 3, Patna Municipal Corporation, Area 24 Kathas 12 dhurs situated at Bank Road, patna. (2) Land being portion of R. S. Plot No. 155, m. S. Plot No. 127. Ward No. 1, Ranchi Municipality measuring an area of 2 bighas 4 kathas 9 chhalaks situated at Morhabadi, ranch. (3) Land at Srikrishnapuri, Patna. (4) Land and building in New Delhi, Defence Colony. (5) Transport business (passenger buses ). (6) Binod Ashram Residential Hotel at a tenanted premises at Ranch. (7) Bank Account standing in the name of Janardan Singh and Ram Binod Singh. Janardan Singh and one or other of the x 1/4male and/or junior members of the family, smt. Manmati Devi and one or other female members of the family. (8) Land and building at Village malkhachak. P. S. Dighwada. District Saran. (9) Jewellery, ornaments, silver wares. (10) Fiat and the Desclo Car 1 H
Finding of the Court:
1. The suit properties Item Nos. 1 and 2 of the Schedule of the plaint, e. the properties of Bank Road, Patna and that of Morhabadi, Ranchi are still joint and there had been no previous family settlement dividing the properties and that the plaintiff is entitled to get share in the said properties to the extent of 1/4th as rightly decreed by learned Trial Court. 2. The property standing in the name of Indira Singh by virtue of Ext. 12/a can not be partitioned between the parties and the judgment and decree of learned Trial Court to that extent is set aside.
Issues: 1. Has the plaintiff any cause of action for the suit? 2. Is the suit maintainable in its present form? 3. Have the parties got unity of title and possession over the suit property? 4. Are the suit properties self acquired or were acquired by late Ram Vinod Singh? 5. Had late Ram Vinod Singh made a le- gal and valid family settlement and the same is legal and valid? 6. Is the plaintiff entitled to the decree for partition as claimed for? 7. Is the plaintiff entitled for any other relief? 8. Has the Court got jurisdiction to hear the case?
Ratio Decidendi: 1. The onus was on the plaintiff to prove jointness of that property but he failed to establish the same. 2. The alleged failure of Janardan Singh or his son Anil Kumar singh (defendant No. 1) to prove that the said property was not a joint property can not affect the right, title and interest of Smt. Indira Singh in the property exclusively standing in her name. 3. The said property also can not be dealt with or partitioned in absence of Indira Dev. She was not a party to the suit and had no opportunity to defend herself. 4. The Ext. 3 can not be treated as an admission of Indira Singh against her interest behind her back. The Ext. 3 is not a document capable of conferring/transferring any title to any or divesting Smt. Indira Singh of her title.
Final Decision: First appeal Nos. 18 and 20 of 1999 (R) are allowed in part to the extent indicated above. Since the final decree made on the basis of the preliminary decree passed in partition Suit No. 153 of 1972 has been assailed in First Appeal Nos. 73 and 74 of 2001 and the said preliminary decree has been partly set aside and modified, the final decree passed in Partition Suit No. 153/72 on the said basis does not sustain and is hereby set aside. The parties are at liberty to take steps for preparation of final decree in accordance with the modification made in the preliminary decree as indicated hereinabove. However, in the circumstances of the case, there is no order as to costs.
( 1 ) THESE four appeals arise out of the judgment and decree passed by learned Trial Court in Partition Suit No. 153/ 1972. Two appeals,. e. First Appeal No. 18 of 1999 (R) filed by Smt. Saraswati Singh (defendant No. 3 in the suit) and First Appeal no. 20 of 1999 (R) filed by Anil Kumar singh (the defendant No. 1 in the suit) are against the judgment and preliminary decree dated 28-11-1998 passed by learned sub-Judge-VII, Ranchi in the said suit whereas First Appeal No. 73 of 2001 filed by Smt. Saraswati Singh (defendant No. 3 in the suit) and First Appeal No. 74 of 2001 filed by Anil Kumar Singh (said defendant no. 1) are against the final decree dated 26-7-2001 passed in the said Partition Suit No. 153 of 1972.
( 2 ) SINCE all the appeals are based on the same facts, evidences and material and the parties are also common, the same were heard together and are being disposed of by this judgment.
( 3 ) THE original plaintiff Surendra Sinha had filed the said partition suit, praying decree for partition of 3/4th share in item Nos. 1 and 2 and 1/4th share in item Nos. 3, 4, 5, 6. 7. 8, 9 and 10 of the Schedule appended to the plaint and also for a decree for rendition of account of item Nos. 5, 6, 7 and 9 of the schedule of the plaint against the defendant No. 1, cost of the suit and for any other reliefs. The suit properties were described in the Schedule of the plaint as Col- lows :- schedule (1) Land, building in M. S. Plot No. 550 and 551, Holding No. 253, Ward No. 1, Circle no. 3, Patna Municipal Corporation, Area 24 Kathas 12 dhurs situated at Bank Road, patna. (2) Land being portion of R. S. Plot No. 155, m. S. Plot No. 127. Ward No. 1, Ranchi Municipality measuring an area of 2 bighas 4 kathas 9 chhalaks situated at Morhabadi, ranch. (3) Land at Srikrishnapuri, Patna. (4) Land and building in New Delhi, Defence Colony. (5) Transport business (passenger buses ). (6) Binod Ashram Residential Hotel at a tenanted premises at Ranch. (7) Bank Account standing in the name of Janardan Singh and Ram Binod Singh. Janardan Singh and one or other of the x 1/4male and/or junior members of the family, smt. Manmati Devi and one or other female members of the family. (8) Land and building at Village malkhachak. P. S. Dighwada. District Saran. (9) Jewellery, ornaments, silver wares. (10) Fiat and the Desclo Car 1 H
( 4 ) IT is relevant to mention here that there was no proper description for identification of the property of item No. 3,. e. (land of srikrishnapur. Patna) and of item No, 4 (land and building at Defence Colony, New delhi ). By an amendment, item No. 6 of the said Schedule. e. , Binod Ashram residential hotel at a tenanted premises at Ranchi was deleted from the plaint vide order dated 6-7-1976 of the Trial Court.
( 5 ) PLAINTIFFS Case : The plaintiffs case is that parties are Hindus and are governed by Mitakshara School of Hindu Law read with Hindu Succession Act. 1956. The plaintiff and defendant No. 1 are brothers. Defendant Nos. 2 and 3 are their sisters. Their late father Ram Binod Singh at the relevant time was the Karta of the joint family. He had acquired considerable properties and had extensive business of stage coaches, private and public lorries, transport and hotel at Ranchi and elsewhere. He had earned and accumulated considerable wealth. As desired by the Indian National congress, Ram Binod Singh, who was then an M. L. A. converted the joint family business in the name and style of Singh Brothers (Pvt.) ltd. Before that the family had a hotel business in the name and style of "binod Ashram" at Ranch. After some time, the business in the name and style of Singh brothers (Pvt.) Ltd. was closed and was renamed in the name and style of "singh brothers", purported to be a partnership concern with the wife of the defendant No. 1 as a partner. The same was intended for saving tax, but having failed in the attempt, the said business remained the business of h. U. F. Ram Binod Singh had opened a number of a
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