The aforementioned purported deed of partition, in view of the assertions made by the defendant Nos. 5 and 6, was a voidable document at their instance. It was thus incumbent upon the said defendants to question the genuineness or legality thereof by giving particulars of fraud allegedly practised by the defendant No. 1 in getting the said deed of partition executed by them also.
58. It is thus evident that what the defendant Nos. 5 and 6 could not do directly, they are seeking to do indirectly by getting a suit for partition filed by the plaintiff. Such a design on the part of the defendant Nos. 5 and 6 should not be encouraged by a court of law.
68. In law, a deed registered under the Indian Registration Act carries a sanctity. In a case where, a party thinks that such a deed, if allowed to remain, shall cause prejudice to them they may bring a suit for getting the said deed annulled by instituting a proper suit in this regard.
69. There is no doubt that a deed of partition is also such a document in relation whereto a suit in terms of Section 31 of the Specific Relief Act may be filed and for such a suit, the period of limitation would be three years.
In view of the fact that the plaintiff has not challenged the aforementioned partition deed (Ext. D), the defendant Nos. 5 and 6 also cannot be permitted to challenge the same in a simple partition suit filed by the plaintiff. In terms of the provisions contained in Sections 91 and 92 of the Evidence Act, no oral evidence was admissible, unless a specific pleadings of fraud were made in the plaint to prove that the recitals of the said documents are not correct and in any event, allegedly the allocations of share made therein in favour of the co-sharers were not commensurate with the share claimed by the respective parties.
Patna High Court
Raghunath Tiwary And Ors. vs Ramakant Tiwary And Ors. on 6 March, 1990
Equivalent citations: AIR 1991 Pat 145
1. This First Appeal at the instance of the defendant Nos. 1 to 4, arises out of a judgment and decree dated 28-2-1977 passed by Sri Jagmohan Bir, III Additional Subordinate Judge, Palamau at Daltonganj in Partition Suit No. 35 of 1973, whereby and whereunder the said learned court declared that the plaintiffs have 1/9th share in the properties described in Schedule A of the plaint which are liable to re-partitioned after, alloting Schedule B lands to the share of defendant Nos. 1 to 4.2. The relationship of the parties, whichis admitted would appear from the following genealogical table :---
Ramhit Tiwary
/
_____________________________________________________________________________ ______
/ / / /
Baijnath Tiwary Bishwanath Tiwary Raghunath Tiwary Jairam
Tiwary
(Defdt. No. 5) (Defdt. No. 1) Defdt. No. 2
| |
_____________________________________ | | | | Abhaya Kumar Ramakant Tiwary | Tiwary Defdt. No. 6 Plaintiff | _____________________________________________________ ____
/
/
Ramakrishna Tiwary A shutosh
Defdt. No. 3 T iwary Defdt.
N
o. 4
3. However, it is admitted that Ramhit Tiwary died in the year 1944. It is further admitted that Baijnath Tiwary died in the year 1945 leaving behind a daughter Hirdaya Devi. The name of Hirdaya Devi does not figure in the aforementioned genealogical table.
4. According to the plaintiffs, Khata No. 87 of village Kumhar alias Barhkagaon was recorded in the name of Ramhit Tiwary, However, lands under Khata No. 38 of the said village was recorded in the name of Pran Tiwary. He died in the year 1924 leaving behind Ramhit Tiwary and Bhagwat Tiwary as his heirs, who succeeded to his interest having half share each therein.
5. According to the plaintiffs, by an amicable partition between Ramhit Tiwary and Bhagwat Tiwary, Ramhit Tiwary got some lands out of the aforementioned Khata being plot No. 123 measuring an area of 0.65 1/2 decimals, plot No. 156 measuring an area of 0.94 decimals, Plot No. 1077 measuring an area of Order 20 decimals, Plot No. 725 measuring an area of 10 decimals, Plot No. 707 measuring an area of 0.08 1 / 2 decimals, Plot No. 344 measuring an area of 0.47 decimals, Plot No. 150 measuring an area of 20 decimals, Plot No. 151 measuring an area of 0.08 decimals, Plot No. 154 measuring an area of 0.23 decimals, and Plot No. 342 measuring an area of 0.28 decimals, Plot No. 121 measuring an area of 0.27 decimals.
6. The plaintiffs have further alleged that the said Pran Tiwary, Bhagwat Tiwary, Jiwakali Kuar and Surajnath Tiwary owned and possessed lands in khata No. 55 of village Rajwadih and the said recorded tenants had 1/4th share each therein.
7. The plaintiffs further alleged that after the death of the said recorded tenant the properties vested in Ramhit Tiwary. It has further been alleged that the defendant No, 1 further acquired lands, details whereof have been mentioned in para 10 of the plaint, measuring an area of 2 acres 80 decimals in the said village in the name of Deoraj Dubey his brother-in-law in the year 1939.
8. According to the plaintiff, the said properties have all along been the joint family properties. Baijnath Tiwary died in the year 1945 without any male issue. The plaintiffs further alleged that late Baijnath Tiwary left behind a daughter only, who did not inherit the joint family properties, according to the Hindu Law.
9. It is admitted that in the year 1946, the other three aforementioned surviving brothers separated themselves in mess and cultivation, but there never occurred any scientific and legal partition by metes and bonds.
10. According to the plaintiffs, upon attaining majority he requested the defendants to partition the properties by metes and bonds, but the defendants put off the said matter on one pretext or another. Hence, they filed the aforementioned suit for partition.
11. The plaint contains two Schedules. In Schedule-A the plaintiffs have described the properties which are capable of being partitioned including those lands which are allegedly acquired by the defendant No. 1 in his own name or in the name of his brother-in-law.
12. Schedule-B contains those lands, which the defendant Nos. 1 and 2 have sold to the outsiders.
13. In the said suit, the defendants filed a written statement, alleging, inter alia, therein that there had already been a partition by a registered deed of partition dated 4-9-1969 between defendant No. 1 and 2 representing their respective family on the one side and defendant No. 5 representing himself, his brother and the plaintiffs, who are his sons.'
14. It has further been alleged that the plaintiffs have been set up by the defendant No. 5 for instituting the aforementioned suit for ulterior purpose. The said defendant alleged that the lands in Khata No. 87 are situated in village Rajwadih, P. S. Daltonganj and not of village Kumar alias Barkaganwa.
15. It has further been averred by the defendants that the other statements made therein are vague in sofar as the plaintiffs have not stated as to what other Khatas were the ancestral properties in the hands of Ramhit Tiwary.
16. The defendants have further given details of the land which devolved upon Ramhit Tiwary and his brother Bhagwat Tiwary, by reason of their inheritance from their uncle Pran Tiwary in respect of the land recorded in his name.
17. It has further been contended in reply to para 5 of the plaint that Ramhit Tiwary came in possession of the three plots mentioned in para 16 of the written statement after partitioning the land with Banwari Tiwari, which were already sold by Bhagwat Tiwary to his co-sharers.
18. In reply to the statements made in para 6 of the plaint, it has been asserted that lands in Khata No. 55 were sold by Bhagwat Tiwary to Banwari Tiwary and as such there could not have been amicable partition between Banwari Tiwary on the one side and Ramhit Tiwary on the other.
19. In para 18 of the written statement, it has been asserted that there has been a mistake in mentioning Plot No. 658 of Khata No. 55 which should be plot No. 652.
20. The said defendants further alleged that the defendant No. 1 being a teacher since the year 1936-3? had sufficient income from his profession as a teacher and further he had been working as Panchayat Sewak since the year 1950-51 and as he had been separated from his other brothers in mess, residence, lands and worship by amicable partition, he acquired some lands in his own name.
21. It has further been asserted that in the registered deed of partition dated 4-9-1969, the effect of the aforementioned partition which took place in the year 1936 had been mentioned and further thereby it was settled that Bishwanath Tiwary would give up his portion of the house and Bari and the same was alloted to defendant No. 1 and Bishwanath Tiwary was given lands elsewhere. By reason of the aforementioned deed dated 4-9-1969, no other change has been effected in the partition of the year 1936.
22. The defendants, thus, asserted that all the lands standing in his name after the year 1936 are their self-acquired properties.
23. It has been admitted that Deoraj Dubey was the benamidar of defendant No. 1, but it was alleged that the defendant No. 5 brought the said Deoraj Dubey in his collusion and obtained some sale deeds for some of the lands in the name of his two sons namely the plaintiff and defendant No. 6.
24. The defendant No. 1 having come to learn of the said transaction, filed an objection before the Anchal Adhikari against the mutation of the names of plaintiff and defendant No. 6. The Anchal Adhikari made enquiries and found defendant No. 1 to be in possession of all the lands purchased by defendant No. 1 in respect of the said land.
25. However, an appeal was preferred by the plaintiff-appellant No. 6 against the said order in the court of D.C.L.R. which was allowed.
26. According to the defendant No. 1, he had filed a revision application in the Court of Additional Collector, Palamau, which was pending at that time.
27. It has further been asserted that Baij-nath Tiwary died in state of separation in the year 1945 and as such his share was inherited by his daughter Hirdaya Devi, who by reason of sale deed dated 30-6-1947 transferred her right, title and interest to the defendant No. 1.
28. In the aforementioned case, defendant Nos. 5 and 6 also filed a written statement. The said defendants, however, questioned in their written statement, the aforementioned deed of partition, in the following terms:--
"That as regards the statements made in para 11 of the plaint it is submitted most respectfully that this defendant accept the lands mentioned in Schedule "A" subject to the correction which the plaintiff should make of his mistakes as pointed above, to be the lands of the joint Hindu family consisting of the parties to the suit and fit for being partition amongst them in the suit. In this regard it may be mentioned here that in the year 1969 the defendant No. 1 had got a deed of partition prepared and believing in the good faith that he has honestly got the allotments made therein according to real shares of the parties, defendant No. 5 who is illiterate lent his L.T.I, thereto and he prevailed upon his sons at the instant of the defendant No. 1 to put their signatures thereto as witnesses. The plaintiff was then a minor, and he simply acted in obedience to the wishes of his father, defendant No. 5, without understanding or knowing anything. When the partition deed could be had from the Registration Office and when the contents thereof were throughly read and examined it was found that the deed of partition was simply bogus. Although defendant Nos. I and 2 had 2/3rd shares and defendant No. 5 had only 1 / 3rd shares in the partition deed, the valua- , tion in favour of defendant Nos. 1 and 2 together was shown to be Rs. 1000/- and the valuation in favour of defendant No. 5 is also shown to be Rs. 1000/- perhaps the defendant No. 1 had given such valuations to show prima facie that he had become very liaberal towards defendant No. 5 and by such attempt, he wanted to dupe this defendant and succeeded in duping him. However after taking delivery of the deed from the Registration Office when details of the allotments were examined was found that the allotments were wholly inconsistent with the valuations given in the partitioned deed and therefore, the so called partition deed could not be acted upon and it remained confined to papers only. This view of the matter, the plaintiff had the right to demand partition by metes and bounds and these defendants would not have stood in his way but he to come from partition by metes and bounds through court. These defendants, therefore, are not liable pay cost of the suit. Subject to these statements of their these defendants accept the statements of para 12,13,14, 15,16 and 17 of the plaint."
29. The said defendants, in their written statement accepted that there had been certain mistakes in the description of land, which is Schedule-A to the plaint.
30. Upon the aforementioned pleadings of the parties, the learned trial court has framed the following issues :--
"1. Is the suit as framed maintainable?
2. Has the plaintiff any cause of action for the suit?
3. Is the suit barred by the principles of estoppel, waiver and acquiscence?
4. Is there any unity of title and possession between the parties with respect to the suit lands? If so, what are their respective shares and on which lands.
5. Is the plea of pre-partition as set up by the defendant Nos. 1 to 4 correct?
6. Is the suit barred by the doctrine of representation.
7. Whether the plaintiff is entitled to particular of the suit lands with respect to his 1 / 9th share.
8. To what relief or reliefs, if any is the plaintiff entitled?"
31. The learned trial court took up issues Nos. 5 and 6 together and on the basis of evidence adduced on behalf of the parties held that there was no proof of earlier partition but so far as partition by reason of the purported registered document dated 4-9-1969 (Ext. D) is concerned, it has been held that the same was not legal and scientific as thereby major portion was allotted to the defendant No. 1 only. According to the learned trial Court, the plaintiff and the defendant Nos. 5 and 6 have been deprived from their legitimate due share and as such it was held that there had been unity of title and possession amongst the parties with regard to the suit land.
32. In relation to the issues Nos. 6 and 7, the learned trial court held that the question as to whether the plaintiff was minor in the year 1969 or not is not relevant inasmuch as if the said deed dated 4-9-1969 was valid, the plaintiff was bound thereby and he was represented by his father, defendant No. 5.
33. Mr. K.K. Sahay, the learned counsel appearing on behalf of the appellants sub-mited that the judgment and decree passed by the learned court below is not sustainable in law, inasmuch as, it has not at all taken into consideration the effect of the deed of partition dated 4-9-1969 (Ext. D). The learned counsel further submitted that by reason of Ext. D, only a previous partition which took place in the year 1936 had been reiterated.
34. In this view of the matter, the question of the same being not binding upon the plaintiff does not arise. In any event, the plaintiff having not challenged the said deed within three years from the date of his attaining majority, his father and uncle could not have challenged the said deed in their written statement.
35. The learned counsel further submitted that in the instant case, it has been accepted by all concerned that the parties have separate mess, separate residence, separate cultivation and even there have been orders of mutation of the purchasers after they have purchased the properties from the coparceners.
36. According to the learned counsel, in such a situation, partition by metes and bounds must be presumed.
37. With regard to the finding of the learned court below relating to the properties standing in the name of defendant No. 1, the learned court below submitted that the plaintiffs have not pleaded about the existence of joint family nucleus and as such the question of said properties having been acquired by the joint family does not arise.
38. With regard to the deed dated 16-3-1939 (Ext.B/1) in the name of Sri Deoraj Dubey, the learned counsel submitted that Deoraj Dubey committed a fraud upon defendant No. 1 by selling a portion of the said land in favour of the plaintiff No. 6 and defendant No. 1, but the defendant No. 1 was not bound thereby.
39. Mr. N. K. Prasad, the learned counsel appearing on behalf of the plaintiff-respon dents, on the other hand, submitted that the defendant-appellants did not raise a plea that there had been a partition in joint family properties in the year 1969, but they merely alleged that the said deed (Ext. D) merely reiterates the partition which took place in the year 1936.
40. In view of the improbabilities and other circumstantial evidences brought on record, it is evident that no such partition took place in the year 1936 and as such no illegality has been committed by the learned court below in granting a decree for partition as has been claimed by the plaintiffs.
41. The learned counsel further submitted Hirdaya Devi could not have executed any registered sale deed in favour of defendant No. 1, in view of the fact that Baijnath Tiwary died in the year 1945 and thus his undivided interest devolved upon his surviving brothers thus Hirdaya Devi did not and could not derive any right title and interest whatsoever in the said properties.
42. The learned counsel further submitted that in view of the fact that even the lands purchased by the defendant No. 1 in the name of Deoraj Dubey was also shown in the purported deed of 1969, the question of the said properties having been self acquired properties of the defendant No. 1 does not arise and in this view of the matter, the story of partition in the year 1936 as set up by their contesting defendant-appellants must fail.
43. In view of the rival contentions as noticed hereinbefore, the following questions arise for consideration in this appeal:--
"(A) Whether Ext. D was admissible as evidence of partition?
(B) Whether the purchase made by Baijnath Tiwary in his own name as also in the name of his brother-in-law, Deoraj Dubey were his self acquired properties or the same belonged to the joint family?"
44. Re : Question-A
So far as a hindu joint family is concerned, a presumption arises with regard to continuance of the family as a joint family:
45. However, it is also well settled that the said presumption weakens gradually in course of time. In this case, all the properties which are the subject matter of partition are not situate in one village but are situate in villages Rajwadih and Barkagaon.
46. The suit properties consist of ancestral properties, the properties inherited from Pran Tiwary as also the properties allegedly purchased in the names of Raghu-nath Tiwary and his brother-in-law Deoraj Dubey,
47. It is admitted by the plaintiff himself that the parties were having separate mess, separate residence and separate cultivation with regard to the agricultural lands.
48. It is further evident from the pleadings of parties as also the respective evidences adduced by them that Raghunath Tiwary had purchased some properties in his own name as also in the name of his brother-in-law Deoraj Dubey.
49. It is further evident that there had been certain transactions relating to the joint family properties and the names of the purchasers have also been mutuated in the office of the State of Bihar.
50. In this case, admittedly, a registered deed of partition was executed in the year 1969 which was marked as Ext. D. The execution of the aforementioned reistered deed has not been denied or disputed. Even the plaintiff has signed the said deed as an attesting witness.
51. It is true that an attesting witness is not presumed to know the contents of the document. However, there can not be any doubt that the plaintiff was aware of the existence of the aforementioned documents.
52. Despite the fact that the plaintiffs father, namely the defendant No. 5 was one of the executants of the aforementioned document and in the written statement filed by the defendant Nos. 5 and 6, it has specifically been contended that after taking out the certified copy of the said document, they came to learn that a fraud has been committed by the defendant No. 1, the defendant Nos. 5 and 6 did not choose to challenge the said document within the prescribed period of limitation. As the defendant No. 5 was a party to said document, if it was his contention that the said document was procured by the defendant No. 1 by practising fraud with a view to get a larger share in the joint family properties, it was incumbent upon the said defendant to file a suit in this behalf within the prescribed period of limitation.
53. Had such a suit been filed by the defendant No. 5. he was required to furnish particulars about the fraud, allegedly, practised by the defendant No. 1, in terms of Order 6 Rule 4 of the Code of Civil Procedure.
54. Curiously enough, even the plaintiff in the plaint has not questioned the said partition deed (Ext. D) nor did he pray for any relief of a declaration that the said document was not binding upon him.
55. From a perusal of the plaint, it appears that the plaintiff did not make any averments whatsoever challenging the aforementioned deed.
56. In this situation, the question which arises for consideration is as to whether the genuineness and legality of Ext. D could be questioned by defendant Nos. 5 and 6, in their written statement. In my opinion, the answer to the said question must be rendered in negative.
57. The aforementioned purported deed of partition, in view of the assertions made by the defendant Nos. 5 and 6, was a voidable document at their instance. It was thus incumbent upon the said defendants to question the genuineness or legality thereof by giving particulars of fraud allegedly practised by the defendant No. 1 in getting the said deed of partition executed by them also.
58. It is thus evident that what the defendant Nos. 5 and 6 could not do directly, they are seeking to do indirectly by getting a suit for partition filed by the plaintiff. Such a design on the part of the defendant Nos. 5 and 6 should not be encouraged by a court of law.
59. The plaintiff in his plaint, categorically admitted that Bishwanath Tiwary, Raghunath Tiwary and Jairam Tiwary separated in the year 1946 in residence, mess and cultivation whenever such a separation takes place, it is for the plaintiff to show that despite the same there had been no partition by metes and bounds.
60. Except making a bare allegation that there had not occurred any scientific and legal partition of the suit land by metes and bounds, the plaintiffs have not made out any case whatsoever as to how, he is entitled to get the partition effected by his predecessors-in-interest, reopened.
61. Further, the plaintiff admitted in the plaint that such a separation took place in the year 1946. In this background a deed of sale executed by Hirdaya Devi in favour of the defendant No. 1 also assumes importance.
62. It is not the case of plaintiff and the defendant Nos. 5 and 6 that they were not aware of the execution of the deed of sale by Hirdaya Devi. If there had been a complete partition by metes and bounds between Baijnath Tiwary and other co. owners, there can not be any doubt, that the properties which were alloted to Baijnath Tiwary would be deemed to be his separate property and thus the same would devolve upon his daughter.
63. The very fact that even the defendant Nos. 5 and 6 stood by the aforementioned document for a long time without questioning the legality thereof, in my opinion, is a pointer to the fact that there had been a partition by metes and bounds.
64. From a perusal of the statements made in paragraph-9 of the written statement filed on behalf of the defendant Nos. 5 and 6 and as quoted hereinbefore, it is evident that the only allegations made therein were that they executed the aforementioned deed of partition of the year 1969 believing that the shares alloted to them were correct.
65. It is further evident that the defendant No. 5 himself obtained the signature of the plaintiff as a witness in the said deed, albeit, according to him, he did so at the instance of the defendant No. 1.
66. It is further evident that the defendant Nos. 5 and 6 categorically admitted that they came to learn that the defendant No. 1 deceived them in the allotment of share, inasmuch as, allegedly the allotments were wholly inconsistent with the valuation of the lands stated in the deed of partition.
67. In such a situation, the alleged plea of illiteracy of defendant No. 5 must be held to be wholly irrelevant, inasmuch as, according to defendant Nos. 5 and 6 themselves, the copy of the said registered deed of partition was taken out and they understood the contents thereof and came to know about the deception practised by the defendant No. 1 upon them.
68. In law, a deed registered under the Indian Registration Act carries a sanctity. In a case where, a party thinks that such a deed, if allowed to remain, shall cause prejudice to them they may bring a suit for getting the said deed annulled by instituting a proper suit in this regard.
69. There is no doubt that a deed of partition is also such a document in relation whereto a suit in terms of Section 31 of the Specific Relief Act may be filed and for such a suit, the period of limitation would be three years.
70. Further, in view of the fact that the defendant No. 5 was party to the said deed, it was all the more necessary for him to institute a suit immediately after coming to know the contents thereof, but for reasons best known to him, he as also the defendant No. 6 and/ or the plaintiff kept mum for a long time.
71. In view of the fact that the plaintiff has not challenged the aforementioned partition deed (Ext. D), the defendant Nos. 5 and 6 also cannot be permitted to challenge the same in a simple partition suit filed by the plaintiff. In terms of the provisions contained in Sections 91 and 92 of the Evidence Act, no oral evidence was admissible, unless a specific pleadings of fraud were made in the plaint to prove that the recitals of the said documents are not correct and in any event, allegedly the allocations of share made therein in favour of the co-sharers were not commensurate with the share claimed by the respective parties.
72. Curiously enough, the learned trial court did not consider this aspect of the matter at all but he in the operative part of the judgment directed repartition of the properties without taking into consideration that not only no oral evidence was admissible, but no case has been made out by the plaintiff in that plaint that a purported partition although made, the land allotted to him was not proportionate to his share and the same was inequitable and as such he is entitled to get the partition reopened by a decree passed by a competent court of law.
73. In this situation, his plea even though belated that he was minor in the year 1969 should have been viewed. However, the learned trial court did not at all consider this aspect of the matter and held that the question of minority of the plaintiff on the date of execution of the aforementioned deed of partition was irrelevant, inasmuch as, if the same was legal, the plaintiff would be bound thereby.
74. The learned trial court himself recorded the age of the plaintiff as 25 years on 13-12-1976. It is thus evident that the plaintiff was aged about 18 years in 1969.
75. Further, the very fact that the plaintiff, admittedly, was a witness to the aforementioned deed which was subscribed at the instance of his father who goes to show that he, in the year 1969, could not be a minor.
76. Even assuming that he was minor at the relevant time, in law, the minority of a coparcener does not operate as a bar to a partition amongst the coparceners.
77. In such a situation, it was obligatory on his part to show that any partition which took place was unfair and prejudicial to his interest.
78. It is also a settled law that such a partition could have been reopened at his instance if he was a minor at the relevant time on his attatining majority, but such a suit must be contained with regard to his own interest and not that of his father and uncle.
79. The learned court below, by reason of the impugned judgment purported to have held that as there had been no partition by metes and bounds, the plaintiffs is entitled to get a decree for partition, as prayed for by him in the plaint.
80. However, in this case, admittedly the joint family was separated, according to the plaintiff himself, as far back as in the year 1946. In view of the fact that joint family broke up and the parties had separate mess, separate residence and separate cultivation of the properties, the question of there being a nucleus of a joint family would not arise.
81. The plaintiff has not pleaded far less proved that there had been a nucleus of the joint family and the same was sufficient for the purpose of purchasing the properties by the defendant No. 1 -- appellant.
82. It is true that the plaintiff alleged that the defendant No. 1 became the Karta of the family but nothing has been pointed out as to how there could be a joint fund accumulated at his hands, in view of the fact that the parties have been in separate possession of land alloted to them in the year 1946.
83. The learned trial court allowed the defendant Nos. 5 and 6 to lead evidence for the purpose of showing that there had been no partition in the year 1946 as is reflected in the deed of partition of the year 1946.
84. However, D.W. 2 while denying that there had been a previous partition accepted that there was a partition in the year 1969.
85. However, he admitted that the parties had been possessing lands and living in their respective residential houses in the same manner which they have been doing from before.
86. The learned trial court has believed some evidences of the witnesses examined on behalf of the parties for the purpose of coming to the conclusion that the surviving brothers were separated only in mess, residence till 1958-59 and only thereafter their cultivation work was also separated. However, the learned trial court failed to take into consideration the averments made in paragraph 13 of the plaint wherein the plaintiff categorically admitted that separate mess, residence and cultivation by the co-sharers began in the year 1946. Any evidence contrary to the aforementioned pleading was inadmissible.
87. The learned trial court has not assigned any sufficient or cogent reason for disbelieving the witness of the defendants. The transactions which took place amongst the co-sharers did not receive the attention of the learned trial court which they merited. Baijnath Tiwary and Jairam Tiwary transferred the lands under the registered deed of sale dated 13-7-1945 (Ext. B/2). The said deed of sale was executed in favour of Raghunath Tiwary wherein the boundaries on all the four sides have been mentioned.
88. As noticed hereinbefore, Hirdaya Devi also transferred her interest by means of registered deed of sale dated 30th June, 1947, which was marked as Ext, B.
89. It further appears that even during pendency of this suit, Jairam Tiwary sold all his lands which were allotted to him in favour of Raghunath Tiwary. The said Jairam Tiwary dies issueless during pendency of this appeal.
90. It is, therefore, clear that there had been transactions of the properties which were in separate possession of the parties beginning from 1945 continued even after institution of the suit.
91. It is now well known that inter se transfers amongst the co-sharers is a strong proof of partition.
92. Further, Bishwanath Tiwary, who examined himself as D. W. 3 for the defendant Nos. 5 and 6 in paragraph 12 of his cross examination admitted that all the four brothers had begun separate cultivation during the lifetime of Ramhit Tiwary, their father and have been living separately.
93. Taking thus all facts and circumstances of the case, I am of the view that the oral evidence challenging the correctness of Ext. D adduced by the plaintiff or the defendant Nos. 5 and 6 were not admissible in evidence and in view of the admitted positions as mentioned hereinbefore as also the inter se transactions, it has been proved beyond any doubt that the parties have separated for all intent and purport.
94. Re : Question-B
Once, it is held that there had been a partition amongst the family, the question of there being any joint family fund or nucleus of the joint family does not arise.
95. Further, as noticed hereinbefore, the plaintiff has neither pleaded nor proved the existence of any joint family nucleus.
96. Under the Hindu law, there is no presumption that a property standing in the name of a co-sharer is a joint family property.
97. In this view of the matter, it was incumbent upon the plaintiff not only to prove that there had been no partition amongst the coparceners but there was an existence of joint family fund sufficient to acquire the properties in the name of the defendant No. 1.
98. In view of the assertions made by the plaintiff made in paragraph-13 of the plaint, in my opinion, the onus of proof in relation to this fact was all the more rigorous.
99. The plaintiff, except making some vague allegations in paragraph-9 of the plaint, did not state as to whether there was a joint family nucleus at the hands of the defendant No. 1, who was allegedly the Karta of the family. In this connection, reference may be made in para-20 of the written statement.
100. It is true that the lands which stood in the name of Deoraj Dubey were included in Ext. D. However, the defendants have assigned sufficient reason therefor.
101. From a perusal of the evidence of D. W. 11 (Raghunath Tiwary) it appears that Deoraj Dubey purported to have transferred !/4th of the lands of Khata No. 117 of village Barkagaon and it was to quell this dispute that Raghunath Tiwary conceded to part with lands of Khata No. 117, although, he was the real owner thereof.
102. According to the defendant Nos. 1 to 4, the same was done in order to avoid litigation.
103. The defendant No. 6 who was examined himself as D.W. 4 in paragraph 24 of his cross examination, further admitted that Raghunath Tiwary was assaulted in respect whereof the defendant No. 6 was prosecuted in a criminal court and was punished. The aforementioned fact has also been proved by Exts. H and H/1.
104. In such a situation, only because the lands standing in the name of Deoraj Dubey were inclined in the partition deed does not show any admission on the part of Raghunath Tiwary so as to come to a finding that there existed ajoint nucleus.
105. In fact, the learned trial court itself, in para-10 of his judgment, categorically held that the plaintiff has not been able to prove that the acquisition made by Raghunath Tiwary was out of joint family fund.
106. It is thus clear that the plaintiff has failed to prove the existence or sufficiency of joint family fund so as to prove that the property standing in the name of Raghunath Tiwary was in fact, the joint family property.
107. For the reasons aforementioned, in my opinion it is not necessary for this Court to discuss the oral evidence on record, inasmuch as, in ray opinion, the case can be decided on the basis of the pleadings of the parties as also the admitted case of the parties and the points of law as referred to hereinbefore, particularly in view of the fact that a simple suit for partition was not maintainable.
108. In the result, this appeal is allowed and the judgment and decree passed by the learned trial court is set aside and the suit of the plaintiff-respondents is dismissed.
However, in the facts and circumstances of the case, the parties shall pay and bear their own costs throughout.
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