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Judgment
This first appeal has been filed by the plaintiffs-
appellants against the judgment and decree dated 06.03.1978 passed
by learned 4th Additional Subordinate Judge, Samastipur in Partition
Suit No.61 of 1976/01 of 1978 whereby the court below granted only
5/48 share in favour of the plaintiffs although the plaintiffs'' claimed
2/9th share.
Plaintiffs'' case, in short as pleaded in the plaint, is that
the ancestor Ram Khelawan Purbey had two marriages. Laxmi
Narayan Purbey and Ram Narayan Purbey were two sons from first
wife whereas Rajendra Purbey, defendant no.1, is the only son from
second wife namely Ram Sunder Purbain who is defendant no.7.
Defendant nos.2 and 3 are the sons of defendant no.1. Sudama Devi,
the widow of Laxmi Narayan Purbey is defendant no.6. Ram Narayan
Purbey, the second son from first wife, had three marriages. From first
wife he had a son Brijnandan Purbey, who is plaintiff no.1 and his
wife Bindu Devi is defendant no.5 whereas his two sons Ajay Kumar
and Bijay Kumar are plaintiff nos.2 and 3. The son Hari Narayan
Purbey, from second wife, is defendant no.4. The third wife is Sumitra
Devi, who is defendant no.9 and her daughter Neelam Kumari is
defendant no.8.
According to the plaintiffs'' further case, Ram Narayan
Purbey died in the year 1965 and his property devolved on plaintiff
no.1, defendant no.4 and defendant no.8. The defendant no.8 sold
major portion of her share to defendant no.5, Bindu Devi, who came
in possession. Because Laxmi Narayan Purbey died in the state of
jointness in the year 1953, his widow has been made party defendant
no.6. Since there was no partition by metes and bounds, the partition
suit is filed.
Defendant nos.1, 4 to 7 filed written statement and
contested the suit. During the course of hearing the third wife Sumitra
Devi (defendant no.9) appeared and filed intervention application
which was allowed and then she also filed contesting written
statement. The defendant no.5 being the wife of plaintiff no.1 and
mother of plaintiff nos.2 and 3 supported the case of the plaintiffs.
She claimed that she purchased by registered sale deed dated
27.05.1975 for Rs.5,000/- from defendant no.8. In fact defendant no.8
sold for expenses of her own marriage. After sale she ceased to have
any concern with the family property. Ram Sunder Purbain is also a
maintenance holder only. This defendant no.5 claimed separating her
share which she has purchased.
The main contesting defendant is defendant no.1.
According to this defendant, Ram Khelawan Purbey died in the year
1941 and then all the heirs agreed to partition through panchayati and,
accordingly, arbitrators were appointed by executing registered deed
of reference dated 24.09.1948. An award was passed on 29.11.1948
which was registered. By this award 7 bighas of land besides some
money and one room was given in possession of Ram Sunder Purbain
for her maintenance which is detailed in Schedule I of the written
statement. Thereafter in the year 1951 all the three sons of Ram
Khelawan Purbey partitioned the homestead lands by metes and
bounds and thereafter defendant no.1 constructed a pacca house and
this house is described in Schedule II of the written statement.
According to this defendant, all other properties have also been
partitioned by the three brothers. So Laxmi Narayan Purbey died in
the state of separation from his brother Ram Narayan Purbey. Ram
Narayan Purbey died in the year 1965 and on his death his two sons,
third widow Sumitra Devi and one daughter (defendant no.8) came in
possession of his property. The plaintiffs wrongly alleged that Sumitra
Devi remarried during lifetime of her husband Ram Narayan Purbey.
The further case of defendant no.1 is that Laxmi
Narayan Purbey died leaving behind Sudama Devi (defendant no.6)
who to meet the expenses of shradh and repay the dues sold 5 annas 6
gandas 2 kauri 2 karant 2 dant milkiyat interest in Tauzi No.13399 by
kewala in favour of defendant no.1, Rajendra Purbey and he came in
possession thereof. This defendant further claimed that if previous
partition plea is not accepted then the newly constructed house be
allotted in his share as it is his personal property.
According to Sumitra devi (defendant no.9), after
death of Ram Khelawan Purbey all his sons were separated but there
was no partition by metes and bounds. By registered arbitration award
property was given to Ram Sunder Purbain as maintenance for
lifetime only without right to alienate. A condition was also there that
after her death the property given to her would come back to three
brothers. She further alleged that being the third wife she remarried
after the death of Ram Narayan Purbey because of inhumane
behaviour by the plaintiff and his wife. After the death of her husband
she also got payment of compensation payable to her husband. The
defendant no.4 by playing fraud without knowledge of this defendant
recently had withdrawn the compensation amount in collusion with
the plaintiff. Regarding the sale deed by defendant no.8 in favour of
defendant no.5, according to her, this sale deed is void and inoperative
as Neelam Kumari was minor on the date of sale deed. She also,
therefore, claimed her share.
Defendant no.7 filed written statement which is in
support of defendant no.1 whereas the written statement of defendant
no.4 is similar to that of Sumitra Devi to some extent and to some
extent as that of defendant nos.1 and 7. This defendant denied that
Sumitra Devi remarried during lifetime of her husband Ram Narayan
Purbey. According to him, four years after the death of Ram Narayan
Purbey she remarried with one Bindeshwari Mandal. Neelam Kumari
(defendant no.8) was born on 21.12.1959 whereas her mother
remarried in the year 1968-1969. The sale deed by defendant no.8 in
favour of defendant no.5 is fraudulent, collusive and without
consideration. The self construction alleged by defendant no.1 is
denied and this defendant stated that the construction was made by
joint family fund by all the defendants. The defendant no.5 filed
contesting written statement which is in the same line as that of
defendant no.4.
On the above pleadings of the parties the learned trial court framed the following issues:-
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got cause of action or right to sue?
(iii) Is the suit barred by limitation?
(iv) Is the suit barred by the principles of estoppel, waiver and acquiescence?
(v) Is the suit bad for defect of party?
(vi) Are the sale deeds executed by Nilam Kumari in favour of Bindu Devi valid?
(vii) Has Sumitra Devi remarried during the lifetime of her husband or after his death?
(viii) Is there joint possession and community of interest of the party in the suit property?
(ix) Are the plaintiffs entitled to a decree for partition?
After hearing the parties and considering the
materials available on record the learned trial court came to the
conclusion that Neelam Kumari rightly sold the property to Bindu
Devi (defendant no.5) as such she is entitled for allotment of her
share. Sumitra Devi remarried after the death of Ram Narayan Purbey
and not during his lifetime. There had been no partition between the
parties by metes and bounds and the parties are living separately for
the sake of convenience only. Therefore, excluding the property given
to Ram Sunder Purbain the remaining property is liable for partition
and calculated the share and held that the plaintiff has got 5/48 share
and accordingly, decreed the plaintiffs'' suit in part.
The learned Senior Counsel Mr. T.N. Maitin
appearing on behalf of the appellants submitted that the learned trial
court has wrongly granted the share of 5/48. In no case the plaintiff is
entitled for only 5/48 share. Moreover, the court below wrongly
excluded the property of Ram Sunder Purbain. According to the
learned Senior Counsel, there is clear speculation in the award of the
punches that after her death the property will go to the three sons of
Ram Khelawan Purbey but the trial court wrongly excluded the
property. Moreover, Ram Sunder Purbain was respondent no.7 in this
first appeal and she died in the year 1988, therefore, her property will
devolve on the three sons of Ram Khelawan Purbey and will not go to
defendant no.1 alone. Therefore, that part of the judgment be modified
because of subsequent event. The learned Senior Counsel further
submitted that the plaintiffs-appellants adduced reliable evidence in
support of the fact that Sumitra Devi (defendant no.9) remarried
during the lifetime of her husband Ram Narayan Purbey but the trial
court wrongly discarded the evidence of the plaintiff and recorded
incorrect finding that she remarried after death of her husband,
therefore, Sumitra Devi is not entitled to any share. In such
circumstances, the plaintiff''s share is liable to be increased. Further,
the learned trial court has wrongly held that the house was constructed
by defendant no.1 and wrongly held that it is the property of
defendant no.1.
The learned Senior Counsel Mr. Maitin further
submitted that Laxmi Narayan Purbey died after coming into force of
the Hindu Women''s Right to Property Act, 1937 but his widow
Sudama Devi was getting maintenance. She is defendant no.6. The
defendant nos.1 and 2 claimed that they have purchased land from
Sudama Devi. According to the learned Senior Counsel, Sudama Devi
had no right to sell the property and the benefit under Section 14(1) of
the Hindu Succession Act, 1956 will not be available to the
purchasers. In other words, the reversioners i.e. Ram Narayan Purbey
and others will not be bond by the sale and the purchasers (defendant
nos.2 and 3) will not derive title and, therefore, that property is also
liable for partition.
On these grounds the learned Senior Counsel
submitted that this first appeal be allowed and the impugned judgment
and decree be modified and the plaintiff''s share be increased as
claimed by the plaintiff and be held that the property awarded by
punches to Ram Sunder Purbain is available for partition and that
Sumitra Devi is not entitled to any share.
On the other hand, the learned counsel for the
respondent no.4, who was defendant no.4 in court below, supported
the appellants'' arguments regarding the property measuring 7 bighas
of land allotted to defendant no.7, Ram Sunder Purbain, and submitted
that it will go to the joint family and, accordingly, liable for partition.
The learned counsel Mr. Manoj Kumar appearing on
behalf of respondent no.9, who was defendant no.9, supported that
there are overwhelming evidence in support of the fact that this
defendant no.9 remarried much after the death of her husband Ram
Narayan Purbey and, therefore, she is entitled to a share in the
property. So far the property given to Ram Sunder Purbain by
registered award is concerned, the learned counsel submitted that
according to law the property will be divided by the parties and will
not go to defendant no.1 alone. Therefore, learned counsel submitted
that so far the finding that Sumitra Devi remarried after death of her
husband needs no interference.
In view of the above rival contentions of the parties
the following points arise for consideration in this first appeal:-
(i) Whether the property of Ram Sunder Purbain given to her by registered award (Ext.D-2) will revert back to the family after her death or the property will devolve on defendant no.1 alone? (ii) Whether Sumitra Devi remarried after the death of her husband Ram Narayan Purbey as claimed by her or she remarried prior to death of her husband and whether she is entitled to any share in the property? (iii) Whether the trial court wrongly held that the house has been constructed by defendant no.1 himself only, as such is not available for partition? (iv) Whether Sudama Devi (defendant no.6) had the right to sell the share of her husband in favour of defendant nos.2 and 3 and whether the purchasers acquired title because of the said purchase or not?
Point No.(i) :-
In view of the submissions of the parties now it
appears that the controversy between the parties centers round the
share of the plaintiff and the property which has to be partitioned by
the parties which has been excluded from partition i.e. property
measuring 7 bighas of land awarded in favour of Ram Sunder Purbain
and the house which has been held to be constructed by defendant
no.1 only. So far share is concerned, according to the plaintiffs-
appellants, Sumitra Devi will not get any share as she remarried
during lifetime of her husband Ram Narayan Purbey. It is admitted
case that by Ext.D-2 dated 29.11.1948 Ram Sunder Purbain was
given 7 bighas of land as maintenance to her. In this registered
maintenance deed there is clear recital that after her death the
property will revert back to the family. It is admitted fact also that
when Ram Khelawan Purbey died in the year 1941, he had a son
through Ram Sunder Purbain i.e. defendant no.1.
Section 14 (2) of the Hindu Succession Act, 1956
provides that nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the
decree, order or award prescribe a restricted estate in such property.
In Ext.D-2 there is clear restriction prescribed in the property
measuring 7 bighas of land given to Ram Sunder Purbain.
The Hon''ble Supreme Court in 2013 (3) P.L.J.R. 1
(SC) (Ramji Gupta & Anr. Vs. Gopi Krishan Agrawal & Ors.)
has held that if a Hindu female has been given only a life interest in a
property, it would remain the same even after commencement of the
Act and such a Hindu female cannot acquire absolute title. In the
present case, at our hand, as stated above the defendant no.7 Ram
Sunder Purbain had been given life interest only in the property
measuring about 7 bighas of land. Therefore, on the death of Ram
Sunder Purbain (defendant no.7) this property will revert back to the
joint family and will be divided between the parties in which the
plaintiff has also got share. According to the decision of the Supreme
Court, Ram Sunder Purbain will not become absolute owner of the
said property after coming into force of Hindu Succession Act . In my
opinion, therefore, the learned trial court has wrongly excluded this
property from partition and while excluding this property from
partition, the learned trial court has not considered the settled
principles of law nor has considered the provision of Section 14 (2)
of the Hindu Succession Act, 1956. Thus, the finding of the trial court
on this point is hereby reversed.
Point No.(ii) :-
According to the plaintiff, Sumitra Devi remarried
during the lifetime of her husband Ram Narayan Purbey whereas
according to defendant no.9 and defendant no.4 Sumitra Devi
remarried after death of her husband. In support of their respective
cases both the parties have adduced evidence.
P.W.4, P.W.5 and the plaintiff who has been
examination as P.W.7 have stated that Sumitra Devi (defendant no.9)
remarried during the lifetime of her husband. Defendant no.5 who has
been examined as D.W.47 has supported the case of her husband-
plaintiff. These are the oral evidences from the plaintiff side. On the
contrary, in addition to the oral evidences, the defendants have
produced documentary evidences also. Sumitra Devi herself has been
examined as D.W.44 who in her evidence clearly stated that she
remarried seven years after the death of her husband Ram Narayan
Purbey. The evidence of D.Ws. 23, 27, 28, 30, 31 to 33, 41 and 42 all
have stated in one voice that Sumitra remarried after death of Ram
Narayan Purbey. As stated above these are the oral statements versus
oral statements.
The defendants have produced Ext.A-3/2 which is a
petition dated 13.12.1966 filed by Sumitra Devi herself before
Anchal Adhikari where she claimed that after the death of her
husband she and her step-son are entitled to receive compensation.
Ext.A-3/4 is the petition filed by plaintiff no.1 himself wherein he has
admitted that after death of his father Sumitra Devi remarried. In this
document the plaintiff clearly admitted the case of the defendants. It
is settled principles of law that admission is the best evidence unless
it is proved to be erroneous or is explained satisfactorily. In the
present case, there is no such case of the plaintiff. Reference may be
made to the decision of the Supreme Court, A.I.R.1960 Supreme
Court 100 (Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal
Vinayak Gosavi and others). In Ext.A-3 which is an application
dated 24.01.1975 filed by plaintiff no.1 himself again admitted the
same fact. Likewise in the application dated 26.08.1973 filed by
defendant no.4 which has been marked as Ext.A-3/1, defendant no.4
has admitted that Sumitra Devi remarried in the year 1972. This is the
pleading of defendant no.4 in his written statement also. The order
sheets of Case No.22/60-61 have also been produced by the
defendant from which it is evident that in the year 1966 and in the
year 1969 Sumitra Devi withdrew some amount of compensation and
these documentary evidences clearly support the fact of the defendant
that Sumitra Devi remarried after the death of Ram Narayan Purbey.
Admittedly Ram Narayan Purbey died in the year 1965. Defendant
no.4 admitted in the application stated above that she remarried in the
year 1972 which also supports the evidence of D.W.44, Sumitra
Devi.
In view of my above discussion I find that Sumitra
Devi did not remarry during the lifetime of her husband Ram
Narayan Purbey. In other words, on the death of Ram Narayan
Purbey she inherited the property equal share as that of the two sons
of Ram Narayan i.e. plaintiff no.1 and defendant no.4. The finding of
the trial court on this point is, therefore, confirmed. Accordingly,
point no.(ii) is answered against the appellants and in favour of the
respondents.
Point No.(iii) :-
According to the plaintiffs'' case, all the properties
are joint family properties whereas according to defendant no.1 there
was partition between three brothers and after partition defendant
no.1 constructed a separate pacca house which has been detailed in
Schedule II of the written statement. The court below found that there
had already been partition of the homestead land. According to the
learned Senior Counsel for the appellants, the house has been
constructed by the joint family fund and the court below wrongly
held that there was partition of the homestead land. However, no
reliable evidence has been produced by the plaintiffs in support of the
fact that the house has been constructed by the joint family fund.
Now even if it is held that there was no partition then also it is for the
plaintiffs to prove the fact that the house which is in possession of
defendant no.1 is the joint family house constructed by the joint
family fund but no reliable evidence has been produced. The case of
defendant no.4 and defendant no.9 is that there was separation for
convenience and no partition by metes and bounds. Therefore, the
learned court below has rightly held that the parties were separate in
all respect for convenience only. So far this finding of the court
below is concerned, it is not challenged by the plaintiff. Now,
therefore, when the parties were separate in all respect, how the house
was constructed by all of them jointly, is not clear and there is no
evidence in support of the joint family fund. P.W.7, who is plaintiff
no.1 himself and also defendant no.4 in his evidence clearly admitted
the fact that Rajendra Purbey has constructed a new house at his own
cost over the homestead land. This is again admission of the plaintiff.
Now, therefore, when there is no partition, the suit properties are
liable for partition i.e. house constructed by defendant no.1 will be
allotted in his share but it will not be excluded from partition. In other
words, it is made clear that the house has been constructed on the
joint family property. While partitioning the joint family property the
Pleader Commissioner shall allot this house in favour of defendant
no.1. Thus the finding of the trial court is hereby confirmed.
Point No.(iv) :-
Defendant no.1 claimed that he had purchased the
share of Sudama Devi (defendant no.6) and Sudama Devi who has
been examined as D.W.41 has admitted that she has sold the milkiyat
interest in favour of defendant no.1. The defendant no.1, who is
D.W.19, claimed to have purchased the lands mentioned in Ext.A-2
which is dated 23.09.1954. The learned Senior Counsel Mr. Maitin
for the appellants submitted that Laxmi Narayan Purbey died in the
year 1953. Since there was no partition, Sudama Devi (defendant
no.6) came in joint possession of her husband''s share in the suit
property as limited owner but prior to coming into force of the Hindu
Succession Act, she sold the property in the year 1954, therefore, she
will not get absolute ownership because of the provision as contained
in Section 14(1) of the Hindu Succession Act but the learned court
below wrongly held that after purchase defendant no.1 became owner
of property of Sudama Devi.
It may be mentioned here that nobody appeared on
behalf of defendant nos.1, 2 and 3 in this first appeal to argue the case
contrary to the claim of the appellants. However, it may be mentioned
here that from the documents and case of the parties it is clear that
Sudama Devi sold the property in the year 1954 just after the death of
her husband Laxmi Narayan Purbey in the year 1953. The registered
sale deeds have been produced by defendant no.1.
A Full Bench of Patna High Court in the case of
Harak Singh vs. Kailash Singh, A.I.R. 1958 Patna 581 has held
that Section 14 only applies to properties possessed by the female
Hindu at the date of the commencement of the Act. It is not correct to
say that the expression "possessed by a female Hindu" refers to a
point of time before the commencement of the Act, because such an
interpretation would be inconsistent with the expression "shall be
held by her as full owner" occurring in the latter part of the Section.
In view of this decision on the date of commencement of the Hindu
Succession Act, Sudama Devi was not possessed of the share of her
husband Laxmi Narayan Purbey. This view of the Full Bench of the
Patna High Court is supported by the view taken by Hon''ble the
Supreme Court in the case of Vaddeboyina Tulasamma and others
Vs. Vaddeboyina Sesha Reddi (A.I.R. 1977 Supreme Court 1944)
and Smt. Naresh Kumari and another Vs. Shakshi Lal and
another (A.I.R. 1999 Supreme Court 928). On the date of
commencement of the Hindu Succession Act the purchasers
defendants i.e. defendant no.1 or defendant nos.2 and 3 were in
possession, therefore, they will not get benefit of Section 14 of the
Hindu Succession Act.
The Hon''ble Supreme Court in A.I.R. 1991
Supreme Court 1581 (Kalawatibai Vs. Soiryabai and others) has
held that the limited owner i.e. widowed estate will ripen into full
ownership after coming into force of Hindu Succession Act . Here in
the present case, the purchasers cannot be said to be limited owner or
they are possessing as widowed estate. In this decision itself the
Supreme Court has held that the reversioners are not required to
challenge the sale deed. They may just ignore it as the limited owner
had no right to sell the property. Now, therefore, in view of this legal
position the share of Laxmi Narayan Purbey will not go to the
defendant nos.1, 2 and 3 rather it will to Ram Narayan Purbey''s
branch only and that will be available for partition. The trial court''s
finding on this point is also hereby reversed.
So far share is concerned, on the death of Ram
Narayan Purbey his share to the extent of 2/3rd according to notional
partition as has been held by the Supreme Court in A.I.R. 1978
Supreme Court 1239 Ram Narayan Purbey would have 1/6th share,
plaintiff no.1 would have 1/6th share, defendant no.4 would have 1/6th
share and defendant no.9 would have 1/6th share each. 1/6th share of
Ram Narayan Purbey will then devolve again to plaintiff no.1,
defendant no.4, defendant no.9 and defendant no.8 to equal share i.e.
1/24th. Thus, plaintiff''s share will be 1/6th +1/24th = 5/24th whereas
the share of defendant no.9 will also be the same. The share of
defendant no.8 would be 1/24th only and she has sold if in excess to
her share that will be void. The defendant no.1 will get 1/3rd share
along with his two sons. Thus, the finding of the trial court on the
point of share is modified.
In the result, this first appeal is allowed in part and
the impugned judgment and decree passed by the trial court is
modified to the extent indicated above. In the facts and circumstances
of the case, there shall be no order as to cost.