Patna High Court
Umesh Singh And Ors vs Sarjug Singh And Ors on 29 October, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.667 of 1978
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1.1. Umesh Singh Son of Mathura Singh Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
1.2. Nalani Ranjan Son of Umesh Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
1.3. Shambhu Kumar Son of Umesh Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
1.4. Punam Kumari D/o of Umesh Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
1.5. Birendra Kumar Son of Late Pithu Singh, Resident of Village Maldah, P.S.
1. Barbigha, pergana Maldah, District Monghyr.
1.5. Shashi Prakash Son of Birendra Kumar, Resident of Village Maldah, P.S.
2. Barbigha, pergana Maldah, District Monghyr.
1.5. Anjali Devi Resident of Village Maldah, P.S. Barbigha, pergana Maldah,
3. District Monghyr.
1.5. Mamta Devi Resident of Village Maldah, P.S. Barbigha, pergana Maldah,
4. District Monghyr.
1.5. Nitu Kumari Resident of Village Maldah, P.S. Barbigha, pergana Maldah,
5. District Monghyr.
1.5. Chhoti Kumari Resident of Village Maldah, P.S. Barbigha, pergana Maldah,
6. District Monghyr.
1.6. Smt. Kamla Devi W/o Hare Krishna Sharma, Resident of Village Maldah,
P.S. Barbigha, pergana Maldah, District Monghyr.
1.7. Ram Kumar Husband of Parmila Devi, Village Pakariya, P.S. Nawada, Dist.
1. Nawada.
1.7. Chandan Kumar Son of Parmila Devi, Village Pakariya, P.S. Nawada,
2. District Nawada.
2. Srimati Desho Devi Wife of Mathura Singh, Resident of Village Maldah,
P.S. Barbigha, pergana Maldah, District Monghyr.
3. Srimati Sunita Devi Wife of Umesh Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
... ... Appellants
Versus
2. Kapildeo Singh Son of Saryug Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
3. Arjun Pd. Singh Son of Saryug Singh, Resident of Village Maldah, P.S.
Barbigha, pergana Maldah, District Monghyr.
4.1. Durgesh Devi Wife of Late Sukhdeo Singh, Village and Post Maldah, P. S -
Barbigha, District Sheikhpura.
4.2. Kaushlendra Prasad Son of Late Sukhdeo Singh, Village, Post and P.S.
Lakhimpur District - Jamui
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4.3. Pankaj Kumar Son of Late Sukhdeo Singh, Village, Post and P.S. Lakhimpur
District - Jamui
4.4. Gautam Kumar Son of Late Sukhdeo Singh, Village, Post and P.S.
Lakhimpur District - Jamui
4.5. Khusbu Kumari D/o of Late Sukhdeo Singh, Village, Post and P.S.
Lakhimpur District - Jamui
5.1. Basudeo Prasad Son of Late Harihar Singh, Resident of Village Bhadokhra,
P.S. Nawadah, District Nawadah.
5.2. Indu Kumari D/o of Smt. Chanda Kumari Resident of Village Bhadokhra,
P.S. Nawadah, District Nawadah.
5.3. Bindu Kumari D/o Chanda Kumari, Resident of Village Bhadokhra, P.S.
Nawadah, District Nawadah.
5.4. Lalit Kumar S/o Late Basudeo Prasad Resident of Village Bhadokhra, P.S.
Nawadah, District Nawadah.
5.5. Sharda Ranjan S/o Late Basudeo Prasad, Resident of Village Bhadokhra,
P.S. Nawadah, District Nawadah.
6. Sidheshwar Mahton Son of Bishun Mahton, Resident of Village Maldah
Tola Nardih, P.S. Barbigha, Pergana Maldah, District Monghyr.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. K. N. Choubey, Sr. Advocate
Mr. Sumit Kumar, Advocate
For the Respondent/s : Mr.Rana Ishwar Chandra, Advocate
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CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
C.A.V. JUDGMENT
Date : 29-10-2024
The present appeal has been filed against the judgment
dated 24.06.1978 and decree dated 04.07.1978 passed by 2nd
Additional Sub Judge, Monghyr in Title Suit No. 116 of 1973/3
of 1977 by which the learned Court below has been decreed the
suit in favour of the plaintiffs.
2. For better appreciation of case, the parties shall be
referred according to their status before the lower Court.
3. The case of the plaintiffs (respondents herein) is that
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the plaintiffs and defendants 1st parties are joint family
governed by the Mitakshara School of Hindu Law and are
related to each others as Shown in the Genealogical Table given
below:-
Kuldip Singh
Died 1947
Narsingh Singh Mathura Singh Sarjug Singh
(Died 1940) (Defendant 1) (Plaintif 1) Ambika Singh
Wife -Dasho Devi Son-Kapildeo Son- Sukhdeo
Wife-Tilo Kumari (Defendant 2) Singh Singh
(Plaintif 2) (Plaintif 4)
Daughter- Daughter-Sunita Son-Arjun Singh
Chandra kumari Devi
(Plaintif 3)
(Defendant 4) (Defendant 3)
The common ancestor Kuldip Singh (father) owned and
possessed landed properties mentioned in Schedule "A" of the
plaint. In the life time of Kuldip Singh, the eldest son Narsingh
Singh died in the year 1940 leaving behind his widow Tilo
Kumari and a minor daughter Chanda Kumari. After death of
Narsingh Singh, Kuldip Singh along with his three surviving
sons, namely, Ambika Singh, Mathura Singh (Defendant No. 1)
and Saryug Singh (plaintiff No. 1) came in joint possession of
the properties and the widow Tilo Kumari relinquished her right
in the joint property in lieu of maintenance as also maintenance
of her daughter and was allowed 25 maunds of grains annually
for her maintenance and for the maintenance of her minor
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daughter, namely, Chanda Kumari (defendant No. 4). Kuldip
Singh died in the year 1948 and after death of Kuldip Singh,
Mathura Singh became the Karta of the joint family of plaintiffs
and defendants and thereafter, Chanda Kumari, daughter of
Narsingh Singh and Tilo Kumari was married in the year 1949
with the joint family fund. Tilo Kumari never came in
possession of any portion of the joint family property. It is
further case of the plaintiffs that Tilo Kumari, without any legal
necessity, sold away portions of joint family property through
three registered sale deeds in favour of Mathura Singh
(defendant no.-1), Desho Devi (defendant no.-2, wife of
Mathura Singh) and Sunita Devi, (defendant no.-3, Daughter-in-
Law of Mathura Singh) which are described in Schedules (B, C
and D' to the plaint, being, sale deed dated 26.02.1969 and
11.09.1972
, respectively and thereafter, Tilo Kumari died in the
year, 1972 (on 25.10.1972). It is further case of the plaintiffs
that the Defendant No. 1 to 3 and defendant No. 4 never came in
possession of the properties specified in Schedule B, C and D of
the plaint. Due to dishonest intention and misconduct of
Mathura Singh (Defendant no.-1) were causing difficulties in
the joint management of the suit properties, hence the plaintiffs
filed a suit bearing Title Suit No.116 of 1973 in the learned
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Court of Sub Judge-II, Munger for partition of 2/3rd share of the
plaintiffs in suit property described in schedule -A to the plaint
and for declaration that the sale deeds dated 26.02.1969 and
11.09.1972 executed by Tilo Kumari, respectively in favour of
Mathura Singh (Defendant No.-1), Desho Kumari (Defendant
no.-2) and Sunita Devi (Defendant no.-3) in respect of landed
properties described in Schedules ‘B, and D’ respectively, to the
plaint are not binding on the plaintiffs. Further in the year 1978,
the plaintiffs withdrew the challenge on the validity of the three
sale deeds in favour of the appellants and the converted the suit
into a suit for partition.
4. The case of defendants-appellants that Mathura Singh,
defendant no.1, Desho Devi, defendant no.2 and Sunita Devi,
Defendant no.3, have appeared and contested the suit. A joint
written statement has been filed on their behalf denying the
claims of plaintiffs and pleaded that there was private partition
of the joint family properties amongst Narsingh Singh, Ambika
Singh, Mathura Singh and Sarjug Singh in the year 1942 by
metes and bounds in the life time of Kuldip Singh (their father)
by which each branch was allotted 3.33 acres of land to its
exclusive share, which is described in schedule-1 to the written
statement. It was further pleaded that Tilo Kumari acquired full
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right and title over the properties belonging to her husband.
Chandra Kumari (Defendant no.-4) pleaded in her additional
written statement that her mother, Tilo Kumari executed Sale
Deeds dated 25.02.1969 and 11.09.1972 in favour of defendants
no.-1 and 3 are valid and genuine which were executed for her
legal necessity. After the partition each branch dealt with the
properties separately and independently which has fallen to its
exclusive share. Sarjug Singh, plaintiff no.1, gave his own
share of land in usufructuary mortgage to Awdhesh Kumar
Singh under registered usufructuary mortgage deed dated
19.4.1949, where as Ambika Singh exchanged his own land
appertaining to plot no. 699 with Secretary of Maldeh High
School. It is false to say that Tilo Kumari, the widow of
Narsingh Singh, had relinquished her right to the properties
exclusively belonging to her husband or that she allotted 25
maunds of grains annually by family settlement for her
maintenance and the maintenance of her minor daughter
Chandra Kumari. Tilo Kumari acquired full right and title to the
properties belonging to her husband. She came in actual
possession of the lands which exclusively belonged to Narsingh
Singh, her husband, Subsequently, she conveyed these landed
properties to these defendants under registered sale deeds and
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for consideration. The sale deeds executed by Tilo Kumari in
favour of these defendants are genuine and valid documents.
These defendants are coming in possession of the properties
purchase by them from Tilo Kumari. It is incorrect to say that
the properties described in Schedule A to the plaint continued to
be joint family properties of the plaintiffs and Mathura Singh
defendant no.1, after the death of Narsingh Singh or Kuldip
Singh. It is true that Chandra Kumari, defendant no. 4 was
married in the year 1949. But it is false to say that her marriage
expenses were met with the joint family fund. The defendants
have further pleaded that the suit, as framed is not maintainable,
that the suit is bad for defect of parties and that the plaintiffs
have got no cause of action or right to sue.
5. Defendant nos. 1 to 3 filed additional written statement
in the suit in which they contended, inter alia, that Narsingh
Singh did not join in the execution of the sale deed dated
21/22.5.1943 which was executed by Kuldip Singh, Ambika
Singh, Sarjug Singh and Mathura Singh in favour of Uma
Mahton which would show that Narsingh Singh was separate
from his father and brothers and that the sale deed was not
executed for the maintenance of the joint family, that Baijnath
had obtained decree in S.C.C. suit no. 467 of 1953 on the basis
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of hand note against Ambika Singh that for the satisfaction of
the decreetal dues Ambika Singh had sold his exclusive land in
the year 1957, that for the satisfaction of the purchaser Sarjug
Singh, Plaintiff no.1, and Mathura Singh, defendant no.1,
jointed Ambika Singh in the execution of such sale deed which
was never executed for the benefit of the joint family and Sarjug
Singh, Plaintiff no.1, and his sons Kapildeo Singh and Arjun
Singh, gave their own land appertaining to Plot no. 5944 in
usufructuary mortgage to Baiju Rabi Das under registered
Rehan deed dated 10.6.1965.
6. Defendant No.-4, namely, Chanda Kumari also filed
written statement but she did not contest the suit at the time of
hearing the case on merit and also the defendant no.-5 (2nd
party namely), Sidheshwar Mahto neither appeared in suit nor
contested the suit.
7. The learned Court below after going through the
pleadings as well as after hearing the parties, framed the
following issues:
I. Is the suit, as framed, maintainable?
II. Have the plaintiffs got cause of action or right to sue?
III.Whether the suit is bad for defect of parties?
IV. Whether there was previous partition of the joint family
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defendants, amongst Narsingh Singh and his brothers?
V. Whether Tilo Kumari relinquished her right title or
interest in the joint family property in lieu of
maintenance?
VI.Whether there is unity of title and possession between the
plaintiffs and defendants in respect of the disputed lands?
VII. Whether Tilo Kumari had right or title to execute
sale deeds in favour of defendant nos. 1 to 3 in respect of
lands described in Schedule B, C. and D to the plaint.
VIII. Whether the plaintiffs are entitled to a preliminary
decree for partition of their share, if any, in the suit
property described in Schedule A to the plaint?
IX.To what relief or reliefs, if any, are the plaintiffs entitled
to ?
8. In this case, 13 witnesses viz. Ragho Mahton (Witness
No.1), Kali Mahton (Witness No.2), Jagdish Singh (Witness
No.3), Rajendra Pd. Singh (Witness No.4), Sanichar Mahton
(Witness No.5), Nand Kishor Pd. Singh (Witness No.6),
Sukhdeo Singh (Witness No.7), Siya Sharan Singh (Witness
No.8), Satrughan Pd. Singh (Witness No.9), Bhagwan Singh
(Witness No.10), Sukhdeo Singh (Witness No.11), Saryug Singh
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(Witness No.12) and Kapildeo Singh (Witness No.13) were also
examined on behalf of the plaintiffs. On behalf of defendants
also, 13 witnesses viz. Sidheshwer Mahto (Witness No.1),
Basudeo Singh (Witness No.2), Janardan Singh (Witness No.3),
Naresh Pd. Singh (Witness No.4), Brijnandan Singh (Witness
No.5), Jadunandan Pd. (Witness No.6), Suraj Deo Prasad
(Witness No.7), Sheodani Singh (Witness No.8), Haran Singh
(Witness No.9), Nilkanth Rawani (Witness No.10), Alakh Rup
Lal (Witness No.11), Sita Ram Singh (Witness No.12) and
Mathura Singh (Witness No.13) were got examined. Oral
evidence was led and documents were also exhibited on behalf
of the parties. After analyzing the aforesaid issues, the learned
Court below decreed the suit in favour of the plaintiffs and
hence the defendants (appellants herein) have preferred the
present appeal.
9. Heard Mr. Kamal Nayan Choubey learned Senior
counsel assisted by Mr. Sumit Kumar on behalf of the
appellants-defendants and Mr. Rana Ishwar Chandra for the
respondents-plaintiffs.
10. Learned senior counsel for appellants submits that
there was no pleading that Mathura Singh (defendant No. 1)
acquired the land from Tilo Kumari on behalf of joint family
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property and there was no issue raised and no evidence in the
Court below. By virtue of Section 14 of the Hindu Succession
Act, if any interest was acquired by Tilo Kumari which became
absolute owner as per Section 14 of the Hindu Succession Act,
1956. Learned Senior Counsel further submitted that in
pursuance of the above sale deeds executed by Tilo Kumari is
valid and genuine, it cannot be subjected to other scrutiny. Later
on, Court below held that still there was unity of possession and
upheld the sale deed and Tilo Kumari did not relinquish her
right. In this regard, learned senior counsel by way of citing an
excerpt of Epic Ramcharitmanas submits “दुई कक होकह एक
समय भु आला | हँ सब ठठाई फुलाइब गाला” (is it possible O King !
To roar with laughter and pout at same time? ) [It means that
both the findings regarding validity of sale deeds and the other
regarding its character of joint family will not go together].
Learned counsel for the appellant also submits that all the four
branches of Kuldeep Singh should have got 1/4th share each of
the suit property. The plaintiffs withdrew the challenge on the
validity of the three sale deeds in favour of the appellants
executed by the widow of Narsingh Singh and converted the suit
into a suit for partition. The Court below affirmatively held that
the sale deeds are genuine and after deletion of the prayer
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regarding validity or otherwise of the three sale deeds, there was
no jurisdiction to go into that and record a finding that despite
the sale deeds, the property is joint property and even those
property which are covered and the finding is wrong. Secondly,
there are cogent material and reliable oral evidence to show that
there was previous partition and, hence the suit for partition is
not maintainable but the Court below while deciding issue No. 4
held that the defendants have failed to prove that there was
previous partition. Learned senior counsel further submits that if
the property covered by the three sale deeds are taken to be joint
family property, it is bound to be divided into four shares, i.e.,
for the branches of four sons of Kuldeep Singh. The decree of
2/3rd in favour of the plaintiffs comprising of the branches of
Sarjug Singh and Ambika Singh and one third for the branch of
Mathura Singh has legated the share to the branch of Narsingh
Singh whose daughter at least is available as defendant no.4. It
is well settled that an individual member of the family can
acquire property while remaining a member of the joint family.
In the present case, the appellants pleaded and proved their case
of previous partition and have also proved that Narsingh Singh
had already separated during the life time of Kuldeep Singh as
he was not a co-transferor with Ambika Singh, Mathura Singh
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and Sarjug Singh in 1943. In any event, there was no fetter on
the rights of Defendant No. 1 to 3 to acquire their separate and
exclusive property from Tilo Kumari in 1969 and 1972, who
had absolute and conclusive right to transfer. Further, the
plaintiffs by amending their plaint have accepted the
genuineness of the sale deeds in favour of the defendants and
they are now estopped from challenging the same in any manner
whatsoever. The proposition that the widow had absolute right
to alienate and the defendants have untrammeled right to hold
are covered by the principles laid down in, inter-alia, the
following judgments i.e. AIR 2003 SC 3800, (2008) 1 SCC 465
and 1999 (2) PLJR 258
11. Learned senior counsel next submitted that there was
previous partition in the family and, as such, the present suit for
partition is not maintainable. It is lamentable but a hard fact that
the old reality of Hindu joint family has undergone a sea-change
during the last century caused by the special learning and the
social upheavals. Partition/separation has become the rule and
jointness merely an exception. This social truth can be taken
judicial notice of by the Court. Partition does not always mean
partition by metes and bound. Mere attention to severe may
also constitute partition and thus the Trial Court has wrongly
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held that the defendants have failed to prove that there was
previous partition as alleged by them of the joint family
properties by metes and bounds amongst Narsingh and his
brothers. It is a matter of common practice in rural area that
illiterate or even semi-literate purchaser insists on all the
raiyats/co-parceners/land holders to join as vendors despite
partition just to instill confidence in the Vendee. This hard fact
of life has been ignored by the Learned court below. Learned
senior counsel further argued that the defendants have pleaded
and proved that Narsingh Singh died in 1949. Admittedly there
was a registered sale deed executed in respect of the family
land in 1943. As Narsingh Singh was separate from the family
since 1942, he did not join his brothers Ambika, Mathura and
Sarjug as co-transferor. Learned senior counsel further submits
that by holding that besides one third as already
allotted by the Court below, the appellants are also entitled to
the lands. The land transferred by Tilo Kumari and in any view
of the matter the grant of two-third share to the plaintiff in the
joint family property is unwarranted and untenable. Learned
senior counsel lastly prays that the appeal be allowed by holding
that besides one third share as already allotted by learned Court
below, the appellants are also entitled to the lands. The land
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transferred by Tilo Kumari and in any view of the matter, the
grant of 2/3rd share to the plaintiffs in the joint family property
is unwarranted and untenable.
12. Learned counsel for the respondents-plaintiffs submits
that there was no partition was metes and bounds and there was
unity of title and possession and existence of the joint family
property. Learned counsel next submits that the Trial Court after
due consideration and discussion upon the evidence on record
orally as well as documentary found and held that there was no
previous partition of joint family properties by metes and
bounds amongst the plaintiffs and defendants was made and as
such decided Issue no.-4 decided in favour of plaintiffs. Further
with respect to Issue no.-5, it is stated that in view of the
amendment in plaint, there is no relevancy of said issue, as after
death of Narsingh Singh, his widow, namely, Tilo Kumari got
right and title over the share of her husband in joint family
properties. Learned counsel for the respondents further
submitted that with respect to issues no. 6 and 7, it is stated that
the defendant no.-4, namely, Mathura Singh was the Karta of the
Joint family who used to manage the affairs of the joint family
and used to look after the work of Tilo Kumari. The defendant
no.-4 stated that Mathura Singh purchased the land covered
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under Ext.-A/2 to A/4, i.e., Ext. ‘B, C and D’ from Tilo Kumari
in his name and his wife and daughter -in -law names from his
own separate funds, whereas he had himself admitted in his
examination (para-26 of his deposition) that he had no other
source of income and as such, the Court below found and held
that said Tilo Kumari was right to execute the sale deed (Ext.
A/2, to A/4) and on said land, there is unity of title and
possession of both parties of both plaintiffs and defendants no.-
1 to 3) as the defendant no.-4 not claimed over the joint family
property). Further, with regard to issue no.-3, the learned court
below has rightly found and hold that all the three branches of
plaintiffs no.-1, 3 and defendant no.- 1, who are the head and
representative of their branch have represented the suit on
behalf of junior members of their branch and hence the suit does
not suffer from defect of parties. Learned counsel for the
respondents-plaintiffs submitted that issue nos.-2,8 and 9 had
taken up together and after discussion on said issues the learned
court below had found and hold that the plaintiffs have got
cause of action to sue for partition of their share in the joint
family properties described in Schedule ‘A’ to the plaint. It has
further held that the plaintiffs together have got two-third share
in the joint family properties described in Schedule ‘A’ to the
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plaint. whereas, defendant no.-1 ( Mathura Singh) has got one-
third share in said properties. Thus, the decree passed by the
learned Trial Court does not require any interference by this
Hon’ble Court.
13. After hearing both the appellants and the respondents,
the main points for consideration is that:
1. Whether the judgment and decree of the Court
below is sustainable in the eyes of law ? and
2. Whether the plaintiffs/respondents are entitled
for 2/3rd share in suit property or 1/2nd share in
the suit property?
14. Before coming to the finding, it is important to have
some legal mandate which are required to be seen. Chapter-XII
of the Mulla Hindu Law 25th Edition deals with Joint Hindu
Family Coparceners and Coparcenary Property-
Mitakshara Law. Article 210 speaks about Joint Hindu Family
consists of all persons lineally descended from a common
ancestor, and includes their wives and unmarried daughters. It
speaks about the constitution and for that, recognizes lineal
descendants from a common ancestor and includes their wives
and unmarried daughters. Article 211 signifies a Hindu
coparcenary is a much narrower body than the joint family and
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it includes only those persons who acquire by birth an interest in
the joint or coparcenary property. After the amendment of the
Hindu Succession Act in 2005, a daughter of a coparcener has
been included as a coparcener along with sons of the
coparcener. Article 212 speaks about conception of a joint
Hindu family constituting a coparcenary is that of a common
male ancestor with his lineal descendants in the male line within
four degrees counting from and inclusive of such ancestor (or
three degrees exclusive of the ancestor) A coparcenary is purely
a creature of law. No female can be a coparcener, although a
female can be a member of a joint Hindu family prior to
amendment in Hindu Succession Act in 2005. By virtue of the
Amendment Act, 2005, the daughters of a coparcener are
included as coparceners along with his sons and are recognised
as coparceners in their own right. However, Article 213 speaks
about coparcenary not limited to four degrees from common
ancestor. The rule is that partition can be demanded by any
member of a joint family who is not removed more than four
degrees from the last holder, however, remote he may be from
the common ancestor or original holder of the property.
15. Article 214 identifies undivided coparcenary interest
and essence thereof, is unity of ownership. According to the true
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notion of an undivided family governed by Mitakshara law, no
individual member of the family, whilst it remains undivided,
can predicate, of the joint and undivided property that he, that
particular member, has a definite share, one-third or one-fourth.
His interest is a fluctuating interest, capable of being enlarged
by deaths in the family, and liable to be diminished by births in
the family.
16. Article 218 deals with classification of property
bifurcating in two parts (1) joint family property (2) separate
property. The joint family property consists of (1) ancestral
property, (2) separate property of coparceners thrown into
common coparcenary stock. Property jointly acquired by the
members of joint family with the aid of ancestral fund would
also be joint family property. The main ingredient thereof, is
having joint interest/possession of every coparcener, habitable
by survivorship (before amendment) having right of male by
birth (before amendment) while separate or self acquired
property is acquisition by an individual from his independent
source, even remaining coparcener.
17. Article 219 speaks about incidents of Joint Family or
Coparcenary Property in which every coparcener has a joint
interest and a joint possession. The incidents of a coparcenary
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were summarized in the undermentioned decision of the
Supreme Court. The following are the main incidents of joint
family or coparcenary property. It:
(a) devolves by survivorship, not by succession (227)
This proposition must now be read in the context of
sections 6 to 30 of the Hindu Succession Act, 1956, in
cases where those sections are applicable;
(b) is the property in which the male and female issue
(daughters) after the amendment to the Hindu
Succession Act, 2005) issue of the coparceners acquire
an interest by birth.
18. Article 220 speaks about incidents of separate or self-
acquired property. A Hindu, even if he be joint, may possess
separate property. It is not liable to partition and on his death
intestate, it passes by succession to his heirs, and not by
survivorship to the surviving coparceners.
19. Article 221 deals with (a) nature of the ancestral
property coming from paternal ancestral, (b) property inherited
from maternal grandfather, (c) property inherited from
collaterals- property inherited from females (d) share allotted on
partition (e) property obtained by a gift or will from paternal
ancestor, (f) accretions and (g) repatriated property.
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20. What kind of property could be classified as
separate property is found duly categorized under Article 228.
For better appreciation the same is enumerated hereinafter:-
“228. Separate property. Property acquired in any of
the following ways is the separate property of the acquirer; it
is called ‘self-acquired’ property, and is subject to the
incidents mentioned in 222.
(1) obstructed heritage.- Property inherited as
obstructed heritage (saparati-bandhya daya)
i.e, property inherited by a Hindu from a
person other than his father, father’s father
or father’s father’s father.
(2) Gift- A gift of a small portion of ancestral
movable property made through affection by
a father to his male issue, is his separate
property.
(3) Government grant.- Property granted by
government to a member of a joint family is
the separate property of the donee, unless it
appears from the grant that it was intended
for the benefit of the family.
(4) Property lost to family.- Ancestral property
Patna High Court FA No.667 of 1978 dt.29-10-2024
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member without the assistance of joint
family property. Property acquired by a
father by adverse possession is his separate
property and not ancestral property.
(5) Income of separate property.- The income
of separate property and purchases made
with such income.
(6) Share on partition – Property obtained as his
share on partition by a coparcener who has
no male issue (see Section 221(4)). This
position is now materially altered with the
inclusion of daughters of a coparcener as
coparceners in their own right by the
amendment in the Hindu Succession Act
2005. If therefore, even if a coparcener who
has obtained a share on partition has no
male issue but has a female issue, the
property allotted to him on partition will
partake the nature of coparcenary property.
The above proposition will therefore have to
be read as a coparcener having been allotted
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a share on partition, takes it as his separate
property when he has no issue. This is since,
by virtue of the amendment, as the
distinction between male and female
children of a coparcener stands abrogated
and abolished, both having been given
equality of status as coparceners.
(7) Property held by sole surviving coparcener.-
Property held by a sole surviving
coparcener, when there is no widow in
existence who has power to adopt.
(8) Separate earnings.- Separate earnings of a
member of a joint family.
(9) Gains of learning.- All acquisition made by
means of learning are declared by the Hindu
Gains of Learning Act, 1930, to be the
separate property of the acquirer.”
21. Article 231 speaks about presumption as to
Coparcenary and self-acquired property. It is needless to say
that constitution of Hindu Family is always presumed to be
joint. Whenever there happens to be dispute over status of the
family, the party who pleads contrary to the presumption is
Patna High Court FA No.667 of 1978 dt.29-10-2024
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under obligation to substantiate the same and that is the spirit
of Article 231 wherein it has been laid down that in normal
state of every Hindu Family would be joint. In other words, ‘
given a joint Hindu Family, the presumption is, until the
contrary is proved, the family continues joint. The
presumption of union is the greatest in the case of father and
sons. When coparceners have separated, there can be no
presumption as to jointness. Presumption is stronger in the
case of brothers than in the case of cousins, and the further
one goes from the founder of the family, the presumption
becomes weaker and weaker.
22. Chapter-XVI of Mulla Hindu Law 25th Edition
deals with Partition and Reunion- Mitakshara Law.
Partition, according to that law, consists in a numerical
division of the property; in other words, it consists in defining
the shares of the coparceners in the joint property; an actual
division of the property by metes and bounds is not necessary.
Once the shares are defined, whether by an agreement
between the parties or otherwise, the partition is complete.
After the shares are so defined, the parties may divide the
property by metes and bounds, or they may continue to live
together and enjoy the property in common as before, but not
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the tenure of the property. The Hon’ble Supreme Court in
Kalyani versus Narayanan reported in A.I.R. 1980 SC 1173
held that partition in one sense is a severance of joint status
and a coparcener in coparcenary is entitled to claim it as a
matter of volition. Once there is a disruption, then there is
disruption in the joint family status and the rights are
crystallized although not immediately followed by a defcto
actual division of the property.
23. Article 322 deals with the extraordinary status of
the father who has been empowered to effect partition
amongst him with his sons irrespective of non-inclination of
son. Article 324 prescribes the methodology as to how the
partition could be effected, (a) partition by institution of a suit,
(b) partition by agreement, (c) partition by arbitration.
24. Article 326 speaks about evidence over the factum
of partition as well as burden of proof. It has been elaborated
in the following manner:-
(i) The clearest case is where the members of a
joint family divide the joint property by metes
and bounds, and each member is in separate
possession and enjoyment of the share
allotted to him on partition. Permanency is an
essential feature, though not the sole test, of
and arrangement of outright partition.
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(ii) The next case is of the kind dealt with by the
Privy Council in Approvier v. Rama Subba
Aiyan, where the coparceners, with a view to
partition executed a writing, whereby they
agreed to hold the joint property in defined
shares as separate owners. Such writing
operates in law as a partition, though the
property is not physically divided. This is a
case where the agreement declares on the fact
of it, the intention of the parties to hold the
joint property as separate owners, and no
evidence is admissible of the subsequent acts
of the parties to control or alter the effects of
the document.
(iii) The third case is of the kind dealt with by the
Privy Council in Doorga Pershad v. Kundun,
where the agreement was in writing, but the
document did not declare on the face of it, the
intention of the parties to hold the joint
property as separate owners. In such a case,
when the question arises as to whether the
document operates as a partition, the intention
of the parties is to be inferred from: (1) the
document; and from (2) their subsequent
acts.Where an instrument of partition, after
giving one member his share, provided that
the rest of the property was to be divided in a
particular manner and that the remaining
members should live like an ordinary
undivided family subject to survivorship, it
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was held by the Privy Council that there was
no partition between the other members.
(iv) The last case is of the kind dealt with by the
Privy Council in Ganesh Dutt v. Jewach, a
case where there was no writing at all. In such
a case, when the question arises as to whether
there has been a partition or not, then
intention of the parties as to separation can
only be inferred from their acts. The question
is one of fact to be decided with due regard to
the cumulative effect of all the facts and
circumstances, and primarily the burden of
showing that there has been a partition is on
the person setting it up.
In case of old transactions, when no
contemporaneous document are maintained
and when most of the active participants in the
transaction have passed away, though the
burden still remains on the person who asserts
that there was partition, it is permissible to fill
up gaps in the evidence more readily by
reasonable inferences from the evidence on
record, than in a case where the evidence is
not obliterated or lost by passage of time.
In Ganesh Dutt’s case, a Hindu widow
alleging that her husband B has separated from
his three brothers in Fasli 1295, brought a suit
against them to recover her husband’s share in
the family as his heir. The defence was that B
died joint and undivided. The Privy Council
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held that there was a partition as evidenced by
the following five facts: (1) payment of
revenue of certain villages elonging to the
family, one-fourth in the name of B and three-
fourths in the names of his thee brothers; (2)
crediting to B in Fasli 1295, one-fourth of a
share of Rs. 35,000 recovered by the family
under a decree and three- fourths to the three
brothers; (3) payment of rent by a lessee of a
factory belonging to the family as to one-
fourth to B and as to three-fourths to the three
brothers; (4) purchase in Fasli 1295, by the
four brothers of an estate in their names in
equal shares; and (5) a suit instituted after B’s
death by one as the adopted son and heir of B
to recover a debt due to the family; as to this
last fact, it is to be observed that if B had died
undivided, the suit would have been brought
by the surviving brothers and the adopted son
as coparceners. In the above case, it was also
contended on behalf of B’s widow that B had
become separate from his brother in food and
worship in Fasli 1295, and that fact was of
itself conclusive proof of partition. As to this
contention their Lordships said: “Cesser of
commonality is an element which may
properly be considered in determining the
question whether there has been a partition of
joint family property, but it is not conclusive.
It is therefore, necessary to consider whether
Patna High Court FA No.667 of 1978 dt.29-10-2024
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the evidence in other respects supports or
negatives the theory that the cesser in this
case was adopted with a view to partition in
the legal sense of the word.” Cesser of
Commonality, it is stated above, is not a
conclusive proof of partition, the reason is that
a member may become separate in food and
residence merely for his convenience.
Separate residence of the members of the joint
family in different places where they are in
service does not show separation. Similarly,
other acts, though standing by themselves; are
not conclusive proof of partition, yet may lead
to that conclusion in conjunction with other
facts. They are separate occupation of portions
of the joint property, division of the income of
the joint property, definement of shares in the
joint property in the revenue of the land
registration records, mutual transactions etc.
The mere facts that the shares of the
coparceners have been ascertained does not by
itself necessarily lead to an interference that
the family had separated. There may be
reasons other than a contemplated immediate
separation for ascertaining what the shares of
the coparceners on a separation would be.
(v) Admission of severance made in legal
proceedings, if not explained, can be very
cogent evidence of partition.
25. Since, both the points are deeply intermingled
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whereupon are conjointly decided. The plaintiffs have filed the
suit initially for declaring that the three sale deeds executed by
Tilo Kumari in favour of the defendant Nos. 1 to 3 were not
binding on the plaintiffs but later in the year 1978 an
amendment was brought in the suit and whereafter the suit was
converted into a suit for partition. The plaintiffs claimed that
there was no partition in the joint family property by metes and
bounds amongst Narsingh Singh and his brothers. The
plaintiffs also claimed about unity of title and possession
between the plaintiffs and defendants in respect of the disputed
lands. The plaintiffs further claimed that Tilo Kumari (mother
of defendant No. 4) relinquished her right, title and interest in
the joint family property in lieu of her maintenance as also
maintenance of her daughter (daughter No. 4). On the other
hand, the defendants pleaded that there was previous partition
in the joint family property by metes and bounds amongst
Narsingh Singh and his brothers and this was the reason that
Narsingh Singh had not joined in the execution of the sale
deeds and this clearly indicates that he had become separate
from other members of the family prior to 1943. The
plaintiffs/respondents had no title to the lands thereby and those
lands were not available for partition in the present suit. The
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defendants also claimed that the land executed in favour of
defendant Nos. 1 to 3 were within her rights and that Tilo
Kumari (mother of defendant No. 4) did not relinquish her
rights in lieu of maintenance. The Trial Court while deciding
Issue No. 4 has held that the defendants have failed to prove
that there was previous partition in the joint family properties
by metes and bounds and decided the issue in favour of the
plaintiffs whereas while deciding Issue No. 5 has held that the
Tilo Kumari had not relinquished her right, title and interest in
the joint family property in lieu of maintenance. Further while
deciding issue No. 6, the Trial Court has held that there is unity
of title and possession between the plaintiffs in respect of the
suit properties and while deciding Issue No. 7 has further held
that the Tilo Kumari had right to execute the sale deeds in
respect of her share in the joint family property. The Trial Court
lastly decreed the suit in favour of the plaintiffs granting 2/3 rd
share in the suit property. Thus, the judgment and decree
passed by the Trial Court is full of contradictions. It is the
settled law that the limited right of Tilo Kumari before Hindu
Succession Act, 1956 Act became absolute after operation of
Section 14 of the Hindu Succession Act, 1956. Further, after
the plaintiffs conceded that the original relief for declaration
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that the impugned sale deeds executed by Tilo Kumari in
favour of defendant Nos. 1 to 3 is not binding on the plaintiffs
has become redundant in as much after amendment, the suit
has been changed into one for simple partition. Further, the
findings regarding the validity of sale deeds and unity of title,
interest and possession cannot go together.
26. After hearing the learned counsels for the parties and
perusing the findings given by the Court below, it appears that
although the Court below stated that it was a pleading of the
defendants that there was a partition by metes and bounds but
finding was given that there was unity of title and possession
and that there was existence of joint family and no partition
took place. So far as share of the deceased co-parcener
Narsingh is concerned, as per the submission of the appellants’
counsel that mother of defendant No. 4 along with her minor
daughter acquired the interest of her husband’s interest by
virtue of Section 14 of the Hindu Succession Act as absolute
owner and any sale deed executed by Tilo Kumari in favour of
defendant Nos. 1 to 3 is valid and even her daughter (defendant
No. 4) who appeared in the Court below and decided to support
the pleadings of the appellants and despite this, the Court below
has given a finding that Tilo Kumari (mother of defendant No.
Patna High Court FA No.667 of 1978 dt.29-10-2024
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4) did not relinquish her property in lieu of maintenance and it
was also upheld by the Court below that the sale deeds
executed were valid. Court below also gave a finding that there
was unity of title and possession and there was no previous
partition by metes and bounds. Submission of the appellants’
counsel is that with regard to the partition, general rule is that
there are certain females who have no any right to claim
partition but if the actual partition takes place then there are
certain females entitled to share in partition.
27. Under the Mitakshara law, there are certain persons
entitled to claim partition and so far as female is concerned,
there are certain females who has no right to seek partition but
if the actual partition takes place in the joint family property
then certain female is entitled to share in partition. The
Smritikaras were aware of the rights of females in the family,
so some females who do not have a right to claim partition but
if a partition takes place, they are entitled to share on such
partition. There are three females- wife or widow, mother and
grandmother, who take a share if a partition of joint family
takes place.
28. With respect to rights of the female, the following
principles are relevant:
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(i) Before coming into force of Hindu Succession
Act, the share allotted to a female was not her
absolute interest or stridhana but reverted
back and becomes part of the share out of
which it came except where it was given to her
by way of an absolute gift. But now by virtue
of Section 14(1) of the Hindu Succession Act,
it is her absolute property.
(ii) Before partition by metes and bounds is made
and property is de facto divided on severance
of status the interest of female does not
become absolute owner under Section 14 of
the Hindu Succession Act. Their right arises
only when partition is actually effected.
(iii) Similarly, under Section 6 of the Hindu
Succession Act, the mother and widow take a
share as Class-I heirs of the deceased Hindu
dying intestate and leaving undivided
copercenary interest. Both these provisions
have not affected their right to have a share in
the coparcenary property on partition.
29. Chapter-XVI of Mulla Hindu Law 25th Edition
deals with Partition and Reunion- Mitakshara Law.
Article 315 deals with Widow mother. A mother cannot
compel a partition so long as the sons remain united, however,
if a partition takes place between the sons, she is entitled to a
share equal to that of a son in the coparcenary property. She is
also entitled to similar share on a partition between the sons
and the purchaser of the interest of one or more of them. Under
Mitakshara law when a partition takes place after the father’s
death amongst the sons, the mother as well as step mother are
Patna High Court FA No.667 of 1978 dt.29-10-2024
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entitled to a share equal to that of son.
30. Smiriti Chandrika, II, 268 says: “f}Hkkxs fØîek.ks
iq=k”ka leesok”ka gjs fnR;kFkZ” (It means wherever there is
partition amongst the sons, the widow-mother would get a
share equal to that of a son in the co-parcenary property).
31. In Vineeta Sharma versus Rakesh Sharma and
Others reported in (2020) 9 SCC 1, the Hon’ble Supreme
Court held that by virtue of 2005 amendment in Hindu
Succession Act, a daughter has now become entitled to claim
partition of coparcenary w.e.f. 9.9.2005 while the right of the
wife of a coparcener to claim her right in property is in no way
taken away. The Hon’ble Supreme Court held as under in
paragraph 85 of the judgment:
“85. The right to claim partition is a significant
basic feature of the coparcenary, and a
coparcener is one who can claim partition.” The
daughter has now become entitled to claim
partition of coparcenary w.e.f. 9-9-2005, which is
a vital change brought about by the statute. A
coparcener enjoys the right to seek severance of
status. Under Sections 6(1) and 6(2), the rights of
a daughter are pari passu with a son. In the
eventually of a partition, apart from sons and
daughters, the wife of the coparcener is also
entitled to an equal share. The right of the wife of
a coparcener to claim her right in property is in
no way taken away.”
32. Later on, very recently, Hon’ble Apex Court
reiterated the above view taken in Vineeta Sharma (supra) in
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the case of Prasanta Kumar Sahoo and Others versus
Charulata Sahu and Others since reported in (2023) 9 SCC
641 and quoted paragraph 85 of Vineeta Sharma (supra) the
judgment in paragraph 74.1 of its judgment and held that if
there is a partition of co-parcenary property between father and
sons (and now also daughters) then wife of father as well as
widowed mother of the father would get one share equal share
to that of a son (or a daughter).
33. In the present case, from perusal of the findings of
the Court below, it appears with regard to pleading of the
appellants-defendants that there was previous partition by
metes and bounds, the Court below decided Issue No. 4 in
favour of plaintiffs-respondents and held that the
defendants have failed to prove that there was previous
partition by metes and bounds. Further while deciding
Issue No. 5, the Court below held that Tilo Kumari did not
relinquish her right, title or interest in joint family property
in lieu of maintenance and upheld the sale deeds executed
by Tilo Kumari (while deciding Issue No. 7) and at the
same time while deciding Issue No. 6 held that there was
unity of title and possession and existence of joint family
between the plaintiffs and Mathura Singh (defendant No.
Patna High Court FA No.667 of 1978 dt.29-10-2024
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1) in respect of suit properties. However, even if it can be
presumed that there was no partition by metes and bounds,
under these circumstances, I agree with the submissions of
learned senior counsel that both the findings cannot go
together and if actual partition takes place as per law
between the sons of Kuldip Singh and widow mother of
defendant No. 4, each would be entitled for 1/4th share as
there was a partition suit filed by the plaintiffs. The Court
below has committed error by allotting 2/3rd share to plaintiffs
and 1/3rd share to defendants-appellants and consequent
thereupon finding recorded by the Court below is not found in
accordance with law. Thus, both the points are decided in
favour of the defendants-appellants.
34. In view of the discussions made hereinabove, this
Court sets aside the judgment dated 24.06.1978 and decree
dated 04.07.1978 passed by 2nd Additional Sub Judge,
Monghyr in Title Suit No. 116 of 1973/3 of 1977. This Court
upholds that the original plaintiffs-respondents are not entitled
for 2/3rd share in the suit property but the original plaintiffs-
respondents are entitled to ½ share only in the suit property.
35. Accordingly, the appeal is allowed. However, in the
facts and circumstances of the case, both the parties will bear
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their own costs.
(Rudra Prakash Mishra, J)
Pankaj/-
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