Allowed

Smt. Kalawati Devi and Anr. v. Lallan and Ors.

Allahabad HC20 Jul 2018SAPL/967/1994

Case brief

AI extract

What is this about?

This second appeal deals with property dispute where appellants purchased a share from a family member after a prior partition and family settlement. The High Court set aside the lower appellate court's decree, holding that the prior partition was valid and the property was no longer undivided, thus entitling the purchasers to possession.

What did the court decide?

Judgment and decree of lower appellate court set aside; second appeal allowed; appellants entitled to possession.

Smt. Kalawati Devi and Anr. Vs Lallan and Ors. — Partition | Allahabad HC (2018)

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RESERVED ON:- 28.05.2018 DELIVERED ON:- 20.07.2018

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Case :- SECOND APPEAL No. - 967 of 1994

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Appellant :- Smt. Kalawati Devi And Anr. Respondent :- Lallan And Ors. Counsel for Appellant :- Siddarth Shukla, Devendra Narain Pandey, Nisha Mishra, S. Mandal, S.B. Singh, S.K. Mandal, Sanjeev Narain, Shailesh Kumar Tripathi, V.K. Srivastava Counsel for Respondent :- G.K. Gupta

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Hon'ble Siddharth,J.

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Heard Sri D. N. Pandey and Ms. Nisha Mishra, learned counsel for the appellants and Sri N. K. Pandey and Sri Rakesh Kumar Singh, learned counsel for the respondents.

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This is defendants second appeal against the judgment and decree dated 27.09.1994 passed by Sri Hare Ram Pathak, 9^th Additional District Judge, Varanasi in Civil Appeal No. 34 of 1992 allowing the Civil Appeal of plaintiffs and setting aside the judgment and decree dated 12.02.1999 passed by Sri R.K. Upadhyay, City Munsif, Varanasi in Original Suit No. 396 of 1988 (Lallan and another Vs. Kalawati and others).

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Plaintiffs instituted a suit praying for a decree of permanent injunction against the defendants first set from taking forcible possession on the part of disputed house no. N2/339 shown in the plaint map and not to interfere in the possession of defendants second set in any way.

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Plaintiffs' case is that plaintiff and defendants second set belong to common ancestor Gokul and they are the owners of the disputed house which has not been partitioned but all of them are living separately for the sake of convenience; that defendant no. 3, Jagarnath, was alive till the date of institution of suit and for the last 9-10 years he is living separately at some other place; that defendant no. 3, Jagarnath, has no son and he wanted to sell his share in the property in the disputed house; that the plaintiff no. 1 requested him that he should get his share separated and thereafter sell it; that in case he wants to sell his joint share plaintiffs are willing to pay the market price of the same and he should sell it to them; that defendants first set, who are not the members of the joint family of the plaintiffs and defendants second set, have purchased the share of defendant no. 3, Jagarnath, in the disputed house and want to take forcible possession of the same; that on 03.05.1988 they expressed their willingness to take forcible possession over the purchased property and make construction thereon; that the defendants first set not being member of the Joint Family, are not entitled to take possession over the property purchased by them without partition as per Section 44 of the Transfer of Property Act; that defendant no. 3, Jagarnath, has died during the pendency of the suit and hence the suit for.

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Defendant no. 3, Jagarnath, vendor of the defendants first set, defendant no. 4, Phoolchand, filed their written statements and stated that the plaintiff has

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instituted suit only to harass the defendants; that defendant no. 3 has sold his divided share to the defendant nos. 1 and 2; that defendant no. 4 who was member of the Joint Family stated that partition of the joint family property between the plaintiffs and defendants second set has taken place much before and after the partition the parties are in possession of their respective separated shares; that plaintiffs and defendants second set have no joint property any more and plaintiffs have no concern with the disputed property; that after partition defendants second set and plaintiffs have sold their properties to third parties and they are in possession; that the disputed property came in the share of defendants second set in partition of the same and was sold to the defendants first set and they were put in possession thereof; that the averment of the plaintiff that the disputed property has not been divided is absolutely incorrect; that disputed property is in the form of Khandahar and defendants first set are in possession over the same; that the residence of the parties therein is not like a Joint Hindu Family; that the plaintiffs were fully aware of the sale deed but never objected to the same; that they wanted to purchase this property on a very low price but when they failed in their effort, they had instituted this suit.

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Defendants first set filed their written statement and stated that the father of the defendant no. 8, Baijnath, executed sale deed in favour of Mata Prasad regarding his share after partition and Mata Prasad is in possession over the same; that the plaintiffs were fully aware of the sale deed executed in favour of Mata Prasad; that Lalji father of defendant no. 4, Gopal, also sold his share in the disputed house to Hira Lal after partition and plaintiffs had full knowledge of the same but they never objected; that the defendants first set are in possession over the property purchased by them and suit is barred by Order 9 Rule 11 C.P.C., joinder of unnecessary parties, and barred by Section 34 of Specific Relief Act; that the suit is under valued and court fee paid is insufficient; that this Court has no jurisdiction to decide the suit; that the suit is barred by principle of estoppel and acquiescence and defendants first set are entitled to special cost as Transfer of Property Act as well as Section 31-A of C.P.C. against the plaintiffs and the suit deserves to be dismissed.

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On the basis of pleadings of the parties trial court framed the following issues:-

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(1)Whether plaintiff is the co-owner and co-sharer of the disputed part of the house alongwith defendant nos. 3 and 5?

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(2)Whether the disputed property is the undivided residential house?

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(3)Whether the suit is under valued and court fee paid is insufficient?

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(4)Whether the suit is barred by Section 34 of the Specific Relief Act?

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(5)Whether the suit is barred by the principle of estoppel and acquiescence?

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(6)Whether the defendants first set are members outside the Undivided Hindu Family and they have no right to use disputed property?

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(7)Whether the plaintiffs are entitled to any relief?

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Issue nos. 1, 2 and 6 were considered together and decided by the trial court holding that the plaintiffs are not the co-sharers and co-owners of the disputed share of the house alongwith defendant nos. 3 to 5. Issue no. 2 was decided holding that the disputed house is not undivided residential house. Issue no. 6 was decided holding that no relief for cancellation of the sale deed executed by defendant no. 3 in favour of plaintiff has been sought in the plaint and therefore defendants first set are entitled to use the property purchased by them. Issue nos. 3, 4 and 5 were decided against the defendants and in favour of plaintiff holding that the suit is neither under valued nor court fee is insufficient, suit is not barred by Section 34 of Specific Relief Act and the principles of estoppel and acquiescence. Issue no. 7 was decided holding that plaintiffs are not entitled to any relief and trial court dismissed the suit of the plaintiff.

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Aggrieved by the judgment of the trial court, plaintiffs preferred Civil Appeal No. 34 of 1992 before the lower appellate court. Lower appellate court did not framed any point of determination in the appeal and after reappraisal of the oral and documentary evidence on record held that the disputed house was never partitioned and it was a joint property and the sale was barred by Section 34 of the Transfer of Property Act. It further found that the sale of their respective by said defendant in favour of Mata Prasad and Hira Lal will not lead to the conclusion that the joint property has been divided. Defendants have failed to prove partition of the joint family property, there is no evidence of partition by metes and bounds proved before the trial court and decreed the suit of the plaintiff.

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Aggrieved by the judgment and the decree of the lower appellate court, this second appeal has been preferred before this Court. This appeal was admitted on the following substantial questions of law:-

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(1)Whether after mutual partition/family settlement, the parties to the family settlement can reopen the partition again on the ground that it was not done through the Court?

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(2)Whether in view of the fact that Jagarnath executed a sale deed in favour of appellants after Khangi Batwara of his joint family ( Khangi Batwara has been acted upon much before executed of sale deed) and sale deed is valid and exists, the appellants are entitled to possession of the property shown by letter Ka, Kha, Ga, Gha and oblique lines in the site plan appended to the plaint?

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(3)Whether the sale deed in question executed by Jagarnath in favour of the appellants having not been objected by any of the respondents, although the same was in their knowledge, confers rights upon the appellant to have possession over the property in dispute?

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(4)Whether in view of the fact that sale deed having been executed by Baijnath, father of Phoolchand, in favour of Mata Prasad and Lalji father of Hira Prasad and possession was delivered to them by Baijnath and Lalji, the sale deed executed

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by Jagarnath in favour of appellants, regarding property possession whereof was delivered to them, the plaintiffsrespondents and defendants-respondents second set are entitled to any injunction?

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(5)Whether in view of the fact that unnecessary persons have been impleaded in the suit, the suit is barred by Order 9 Rule 11 C.P.C.?

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Learned counsel for the defendants-appellants has argued that findings recorded by the lower appellate court are absolutely perverse and are required to be set aside. The finding of the lower appellate court are not based on the proper appreciation of the pleadings or evidence on record and the findings of the trial court have been reversed by the lower appellate court without assigning cogent reasons for the same. No point of determination as per Order 41 Rule 31 C.P.C. have been framed while deciding the appeal. It has been further argued that the reliance on Section 44 of Transfer of Property Act has wrongly been made by the lower appellate court without appreciating the fact that the plaintiff himself has admitted partition of the disputed joint family house with consent. He has also admitted in his statement before the trial court that Lalji and Baijnath have sold their shares in the disputed house with the consent of all the brothers to third parties and they are in possession over the same. He has further pointed out to the statement of plaintiff, Lallan (P.W.- 1) wherein he has admitted in his cross-examination that neither he nor his wife resides in the disputed house. Entire house has fallen down and only one room remains. Thereafter he has stated that he has two sons who also do not reside in the house. Then he has improved and stated that only he resides therein. P.W.-2, Sankatha Prasad has stated in his cross-examination that Jagarnath, vendor of the defendants first set, resides in his own share and plaintiffs have no concern with his share. D.W.-2, Harishankar Prasad, grandson of Hira Lal, purchaser from Lalji, has stated that in the sale deed executed in favour of Mata Prasad by Gulab, plaintiff Lallan was the witness.

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Learned counsel for the defendants-appellants has further argued that plaintiff, Lallan, admitted partition and therefore the case set up by him was found to be false by the trial court. Defendants second set admitted partition of the property and also sold their shares to third parties and their possession over the share purchased by them. Trial court further found that only one room remains in the house and one room cannot be a residential house of undivided family as alleging in the plaint. Relying on assessment receipt paper no. 55-C trial court came to the conclusion that plaintiff's house and share is separate and he has no concern with other brothers. He has further argued that presumption of jointness of the Joint Hindu Family property was dispelled by the defendants. There was no question of application of Section 44 of Transfer of Property Act to the case. The lower appellate court has wrongly appreciated the findings and evidence appreciated by the trial court and has recorded a finding that the partition by metes and bound has not been proved by the defendants when there was no such averments in the plaint and the lower appellate court has recorded a perverse finding not based on any pleadings or evidence of the plaintiff. He

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has argued that even in the Nagar Nigam separate house numbers has been allotted to the different share-holders of the house who have separated and this was proved before the trial court but the lower appellate court has ignored the same. Learned counsel for the appellant has relied upon the judgment of this Court in the case of Girdhari and others Vs. Board of Revenue, Allahabad and another, 2009 Alld. C.J. 374 , para 6 in support of his case that the property belongs to the person whose name is recorded unless contrary is true. His argument is that once the property in dispute was found to be recorded in Nagar Nigam in the name of Jagarnath, he was the owner of the same and unless contrary was proved by the plaintiff, the presumption was in his favour.

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Again counsel for the defendant-appellant has contended that where the findings of the courts below are perverse High Court can interfere in second appeal. Reliance has been placed on paragraph 9, 10, 11, 12 and 13 of the judgment of Apex Court in the case of Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors. II (2010) C.L.T. 362(SC) .

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9. While determining the substantial question (b) the High Court only considered the statement of Seethammal, DW1, the step mother of Muthu Reddiar and did not take into consideration the evidence of plaintiff's witnesses which had been relied upon by the courts below, particularly, Kumarasamy PW2 and Kandasamy PW5 and re-appreciated the documentary evidence. Therefore, the question does arise as to whether such a course is permissible while deciding the Second Appeal under Section 100 C.P.C.

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10. In Sheel Chand Vs. Prakash Chand, AIR 1998 SC 3063, this Court held that question of re-appreciation of evidence and framing the substantial question as to whether the findings relating to factual matrix by the court below could vitiate due to irrelevant consideration and not under law, being question of fact cannot be framed.

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11. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa & Ors. AIR 2000 SC 2108, this Court held that it is not permissible for the High Court to decide the Second Appeal by re-appreciating the evidence as if it was deciding the First Appeal unless it comes to the conclusion that the findings recorded by the court below were perverse.

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12. In Kulwant Kaur & Ors. Vs. Gurdial Singh Mann (dead) by L.Rs. AIR 2001 SC 1273, this Court held that the question whether Lower Court's finding is perverse may come within the ambit of substantial question of law. However, there must be a clear finding in the judgment of the High Court as to perversity in order to show compliance with provisions of Section 100 CPC. Thus, this Court rejected the proposition that scrutiny of evidence is totally prohibited in Second Appeal.

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13. Thus, it is evident that High Court can interfere with the finding of fact while deciding the Second Appeal provided the findings recorded by the Courts below are perverse.

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He has further argued that plaintiff has been proved to be dishonest litigant since he pleaded in his plaint that no partition took place between the cosharer of the joint residential property but in his statement and crossexamination he admitted partition and sale of separate share by co-sharers of the property after partition and also possession over the same. Therefore, the plaintiff has abused the process of court and is not entitled to any relief as per the judgment of the Apex Court in the case of Dalip Singh Vs. State of U.P. and another, 2010(2) SCC 114 and Bhaskar Lakshman Jadhav

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and others Vs. Karamveer Kakasaheb Wagh Education Society and others, [2013 (31) LCD 12].

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Learned counsel for the plaintiff-respondent has argued that the judgment of the lower appellate court is in accordance with Section 44 of the Transfer of Property Act. If the defendants are permitted to enter into the joint possession of the joint family property it will cause various types of complication since the defendants first set are strangers to the family and their forcible entrance in the joint family will disturb the privacy and security of the Joint Hindu Family. He has further argued that nowadays this practice has become rampant in the eastern side of the State and people are resorting to sale of undivided share of Joint Family property to strangers who do not have good character and they interfere with the peaceful residence of the other members of the joint family. He has argued that the lower appellate court has rightly recorded the finding that no partition by metes and bounds has been done and merely because some of the members of the joint family property have sold their shares to the third parties have been put into possession, will not mean that the joint family property has been partitioned and suit of the plaintiff has rightly been decreed by the lower appellate court. The error committed by the trial court has been corrected and the findings of fact recorded by the lower appellate court are not required to be interfered by this Court in exercise of its powers under Section 100 C.P.C. He has argued that the reliance of the counsel for the defendant-appellant on the judgment of the Apex Court in the case of Bharatha Matha and another (supra) is misconceived since the counsel for the defendant-appellant has failed to prove any perversity in the findings of the lower appellate court.

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After hearing the counsel for the parties the crux of the dispute between the parties is whether the disputed property constitutes a joint dwelling house and whether the same is still undivided.

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There in not much controversy that the provision of Section 4 of Partition Act and Section 44 of Transfer of Property Act are complementary to each other and the terms “undivided family” and “dwelling house” have the same meaning in both the sections. “Family” is a term of wide import and is not restricted to a body of persons who can trace their descent from a common ancestor. It is often understood to include a group of persons who live in one house under one head or management. As was held in the case of Paluni Dei Vs. Rathi Mallik MANU/OR/0040/1965 :-

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“The term 'family' is not defined in the Act. It has been consistently held that it would neither be possible nor desirable to frame a comprehensive formula or an exhaustive definition to indicate the meaning of the term 'family'. In Khirode Chandra Vs. Saroda Prosad (1910) 7 Ind Gas 436 (Cal) Sir Ashutosh Mukherjee's classical exposition of the meaning of the term 'family' cannot be improved upon. After a thorough discussion, their Lordship's conclusion was couched in the following language:

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“The word 'family' as used in the Partition Act ought to be given a liberal and comprehensive meaning, and it does include a group of persons related in blood, who live in one

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house or under one head or management. There is nothing in the Partition Act to support the suggestion that the term 'family' was intended to be used in a very narrow and restricted sense, namely, a body of persons who, trace their descent from a common ancestor”.

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Therefore, keeping in view of the observation referred to above, there can be no dispute that the parties in the case must be taken to have been members of one family. But that is not enough for the present purpose. The plaintiff had categorically alleged that there had been no partition while defendants have stated that there had been one. A Division Bench of the Culcutta High Court examined at considerable length the meaning and scope of the term “undivided family” in the case of Boto Krishna Ghose Vs. Akhoy Kumar Ghose AIR 3950 Cal 311 . It was held there that “undivided family” meant simply a family not divided qua the dwelling house, in other words, a family which owns a dwelling house and has not divided it. It does not mean a Hindu joint family or even joint family. The members need not be joint in mess. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house.

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As per the definition of undivided family considered by the Kolkata High Court an undivided house and Joint Hindu Family need not be joint in mess. It should be undivided among the members of the family who are its owners but in the present case the disputed house has been divided among the members of the family and two of them have already sold their respective shares to the third parties who have also been inducted in possession with the consent of plaintiffs themselves, therefore, the undivided character of the house does not exists. Plaintiffs have no objection against the induction of third parties in the house and has objection only to the induction of the defendants first set because he has stated in the plaint that he was interested in purchasing the share of defendant no. 3, Jagarnath, vendor of the defendants-appellants, on the market price but he did not sell it to the plaintiffs but sold it to the defendants-appellants. Therefore, he has filed the suit for injunction against the defendants-appellants. In the written statement the defendant no. 3 admitted that plaintiff wanted to purchase the disputed property from him at a low price to which he did not agreed and therefore he has instituted the suit in vengeance. From evidence of the parties it was clear that only one room of the joint Hindu Undivided Family property remained and the remaining house had fallen down and its shares were sold by three out of four co-sharers. Only plaintiff has possession over one room from where he admitted in cross-examination initially that neither he and his wife nor his two sons reside therein but later improved his admission and stated that only he resides therein.

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It is further notable that separate house numbers have been allotted and duly recorded regarding the shares of the members of the family in the Nagar Nigam and as held by this Court in the case of Girdhari and others (supra) there is presumption that the person recorded is the real owner of

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the property unless proved otherwise.

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From the definition of family used in the Partition Act where a group of persons related in blood, who live in one house or under one head of management constitutes a family. In the present case none of the persons related by blood are residing in the house in dispute except, plaintiff no. 1, who has also died. It is clear from the material on record that all the other members of the family have now sold their shares to third parties and have left the ancestral house. Therefore, the judgment of the lower appellate court holding that the property in dispute was undivided family property is unsustainable and the findings recorded by the lower appellate court are illegal and perverse and are hereby set aside. The argument of the counsel for the plaintiffs-respondents that the findings of the lower appellate court are legal and in case the appellants are permitted to take possession of the share purchased by them, it will lead to complications are not supported by the evidence on record since no member of the joint family is found to be residing in the disputed dwelling house and therefore the apprehension of the counsel for the plaintiff-respondent is unfounded.

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The substantial question of law no. 1 framed in this appeal is answered holding that it was not open for the plaintiff to reopen the partition already effected between the parties prior to the sale of the disputed property in favour of the defendants-appellants. Substantial question of law no. 2 is answered holding that the sale deed executed by Jagarnath, defendant no. 3, in favour of defendant-appellant is a valid document and the defendantsappellants are entitled to possession over the property purchased by them on its basis. Substantial question of law no. 3 is decided holding that where none of the respondents objected to the execution of the sale deed by defendant no. 3 in favour of defendants first set except effort made by plaintiff no. 1 to purchase the share of defendant no. 3, the defendantsappellants have every right to get possession over the property in dispute. Substantial question of law no. 4 is decided to the effect that the plaintiffs or defendants second set are not entitled to any injunction against the defendants-appellants. Substantial question of law no. 5 is decided holding that the suit was not barred by Order 9, Rule 11 C.P.C. since without impleadment of all the co-sharers of the undivided property the factum of prior partition could not have been proved before the trial Court. The presence of all the co-sharers was required in the suit once the prior partition of suit property or otherwise was required to be proved for deciding the dispute raised in the suit.

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In view of the above, the judgment and decree passed by the lower appellate court is set aside.

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The second appeal is allowed with costs.

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Order Date :- 20.07.2018 Rohit

Smt. Kalawati Devi and Anr. v. Lallan and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Kalawati Devi and Anr. v. Lallan and Ors.

Case brief

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