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PATNA HIGH COURT
Aditya Kumar Trivedi, J.
Banarsi Kuer @ Maya Devi —Appellant
versus
Gita Devi and Ors. —Respondents
First Appeal No.433 of 1978
Decided on 14.2.2020
(A) Indian Evidence Act, 1872 – Section 50 – Whenever identity of an individual comes under controversy being a member of family, evidence relating thereto has to be tendered complying mandate of Section 50 of Evidence Act – When court has to form an opinion as to identification of a person to other, on account being inter-related, what is relevant as reasoned under Section 50 of Evidence Act is opinion as to existence of such relationship which must be an opinion of a person as a member of family or otherwise, has special means of knowledge on the subject and which opinion must be expressed by conduct of witness towards that person whose relationship was in dispute – Section 50 of Evidence Act makes opinion of a witness relevant only if same was expressed by conduct – It is witness opinion based on his conduct-his outward or external behaviour towards the person whose relationship was to be established, that would be relevant – Conduct must be of such a type that must show to court that witness himself was convinced about said relationship – It is not the conduct of those two persons inter se whose relationship was in dispute but conduct of witness himself towards them. (Paras 32 and 34)
(B) Indian Evidence Act, 1872 – Section 32(5) – Declaration of deceased family member is admissible – In order to fulfil requirement, one has to bring on record properly that deceased was calling a person (disputed) by such name, or deceased had introduced the person (anglo) to be (relation) – Simultaneously, declarant must appear to have had fair knowledge, or fair opportunity for acquiring knowledge on subject testified to – In order to properly appreciate the same, there should be fulfillment of two major ingredients (A) he had special means of knowledge, (B) It was made ante litem motam (means before case began). (Para 36)
(C) Transfer of Property Act, 1882 – Section 52 – Lis Pendens – Section 52 does not make transaction void – It merely makes any right so created by it inoperative against party of suit – Transfer is good except to the extent that it might conflict with rights decreed under decree or order – Effect of Section 52 is not to wipe such sale out altogether, but to subordinate it to rights based on decree on suit – It is scarcely correct to speak of lis pendens as affecting a purchaser through doctrine of notice, though language of courts often so describes its operation – It affects him not because it amounts to notice but because any law does not allow litigant parties to give to others, pending litigation, rights to property in dispute, so as prejudice opposite party. (Paras 40 and 41)
Result: Appeal dismissed.
JUDGMENT (CAV)
Aditya Kumar Trivedi, J.—Appellant/Intervenor/defendant 2nd Party, (since deceased) being aggrieved by and dissatisfied with the judgment dated 10.04.1978, preliminary decree dated 24.04.1978 passed by the Subordinate Judge, East Champaran, Motihari in Partition Suit No. 250/1976 decreeing the suit in part on contest with cost against the contesting defendant and without cost against the rest identifying the 1/4th share of the plaintiff in the property so detailed under schedule by way of acknowledging her right directing to get her share separated, properly demarcated through a pleader-commissioner on depositing due remuneration, filed this appeal.
2. It is further to be taken note of the fact that original appellant Banarsi Kuer @ Maya Devi died on 25.09.1989 and as per admission of Banarsi Kuer @ Maya Devi, she was second wife of father of Gita Devi, (plaintiff/Respondent No.1), hence she (Gita Devi, plaintiff/Respondent No.1) would have been her legal heir, who could have inherit her, but as is evident Respondent No.6, (one of the sons of uncle of Gita Devi, plaintiff/respondent) filed petition under Order-I Rule 10 on the pretext that some lands have already been sold in their favour by the aforesaid Banarsi Kuer, hence he be substituted in a way to protect their right as Banarsi Kuer left for heavenly abode leaving no legal heir which vide order dated 22.04.2015 has been allowed without condoning the delay as well as recalling the abatement. Contrary to Order XXII Rule 4(5) of the CPC on the premises that it happens to be partition suit.
3. For better appreciation, the parties are being identified by their original status, henceforth.
4. Respondent No.1/plaintiff filed a Partition Suit asking for her 1/4th share in the ancestral property so detailed under different annexures (by way of amendment) belonging to the family consisting of Shyamlal Singh and his sons. In order to properly appreciate the inter se relationship, the genealogical table having been furnished at the foot of the plaint and admitted at the end of respondents (save and except to the extent of status of appellant/defendant 2nd Party/intervenor), is furnished below:-
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5. It has been pleaded that Birja Singh (common ancestor) of village-Madhubani died leaving behind three sons, namely, Bhukhal Singh, Rajdhari Singh and Jotik Singh. All the three brothers got separated by metes and bounds in due course of time having their independent identity corresponding to their share. Rajdhari had a son, Bishun Singh. Bishun Singh had two sons, namely, Shyamlal Singh and Narsingh Singh. After death of Bishun Singh, his sons, Shyamlal Singh and Narsingh Singh also separated by metes and bounds. It is the property having allotted to the share of, as well as acquisition of Shyamlal Singh being under partition. In order to avoid future complication, all the family members, descendants of Bhukhlal Singh, Rajdhari Singh, Jotik Singh have been made party, but their status are that of party performa as the property belonging to Shyamlal Singh is only the subject matter of instant partition suit. It has further been asserted that Shyamlal Singh till his death was Karta, Karobari of the family, and after whose death, father of the plaintiff, namely, Awadhesh Singh became Karta and Karobari and after death of Awadhesh Singh, Udaibhan Singh (uncle) became Karta and Karobari which he is continuing even today. Shyamlal died in the year 1964 leaving behind his widow, Mostt. Asharfi Kuer, defendant no.8 and three sons, namely, Awadhesh Singh, Udaibhan Singh and Chandrabhan Singh. Udaibhan Singh and Chandrabhan Singh are defendants no. 1 and 2 respectively. Awadhesh Singh died in the year 1967 leaving behind the plaintiff, the sole surviving heir. Defendant No. 3 and 4 are the wives of defendant no. 1 and 2 respectively. Defendant No. 5 and 6 are the sons of Defendant No.1, Udaibhan Singh. Then it has been submitted that after death of Awadhesh Singh, plaintiff subs
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