This second appeal considered whether a prior partition was valid when the widow Basan Bai was excluded from it. The High Court set aside the first appellate decree, holding the partition illegal and restoring the trial court judgment.
Judgment of first appellate Court set aside; judgment and decree of trial Court restored; second appeal allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.59 of 2009
Smt.Saraj Bai, W/o Bahararam, aged 50 years, R/o
Village – Ghivri, Tehsil Saja, Distt.Durg (CG)
(plaintiff)
---- Appellant
Versus
Bhukhan, S/o Khem Singh Lodhi, aged 45 years,Gyan Singh, S/o Khem Singh Lodhi, aged 41 years,Indramani, S/o Bhukhan Lodhi, aged 27 years,Amrika Bai, W/o Motilal, aged 47 years, (All R/o Village – Toran, Tehsil – Saja, Distt. Durg (CG)Rajesh, S/o Sukhilal, aged 26 years,Omprakash, S/o Sukhilal, aged 23 years,(Both R/o Village – Muglatola, Tehsil – Saja, Distt. Durg (CG)Mahesh S/o Gyan Singh, aged 18 years, R/o Village – Toran, Tehsil Saja, Distt. Durg (CG)(Defendant No.1 to 6 & 8)
State of Chhattisgarh through the Collector, Distt. Durg (CG)---- Respondents
For Appellant/Plaintiff : Mr.Shobhit Koshta, Advocate
For Res.No.1 to 7/ : Mr.Sunil Otwani and Mr.Amit
Defendants Soni, Advocates
For Respondent NO.8 : Mr.Rahul Jha, Govt.Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment On Board
20/11/2019
This plaintiff's second appeal under Section 100 ofthe CPC was admitted for hearing by formulating the
following substantial questions of law: -
“1. Whether the lower appellate Court has
erred in holding that previously partition
has taken place between the parties ?
2. Whether the lower appellate Court has
erred in holding that Khasra No.48/6 & 49/1
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area 1.72 acres was the self-acquired
property of Basan Bai ?”
(For the sake of convenience, parties
hereinafter will be referred as per their
status shown and ranking given in the plaint
before the trial Court.)
The following genealogical tree would demonstratethe relationship between the parties:-
Khem Singh
(Died on 12/11/2001)
Gaya Bai==Basan Bai
(1st Wife)(2nd Wife) (Def-3)
Saraj Bai
(Defendant/Plaintiff)
The suit property was originally held by Khem Singh. He had two wives namely Gaya Bai and Basan Bai. The plaintiff is daughter of first wife of Khem Singh namely, Gaya Bai. Basan Bai, who was defendant No.3 in the suit, is second wife of Khem Singh and defendants No.1 & 2 are sons of Khem Singh out of his wedlock with second wife Basan Bai. Prabha Bai (dead now) & Amrika Bai (defendant3
No.5) were daughters of Khem Singh out of his
wedlock with second wife Basan Bai. On 18.10.2002,
plaintiff-Saraj Bai instituted a suit claiming
partition and possession stating inter-alia that
she has 1/2 share in the suit property alleging
that the suit property is ancestral property of her
father and in order to deprive her right,
defendants NO.1 to 3 got their names mutated in
revenue records. Khem Singh died on 12.11.2001 and
after his death, defendants No.1 to 3 refused to
give share to her necessitating filing of the suit
claiming the aforesaid reliefs for partition and
possession.
The defendants in their written statement set-up a plea that the suit land has already been partitioned orally by their father Khem Singh during his lifetime in the year 1982 between him (Khem Singh) and his two sons namely Bhukhan Singh (defendant No.1) and Gyan Singh (defendant No.2) and the plaintiff is only entitled to get the partition with respect to 0.26 hectares of land left by her father Khem Singh at the time of his death. It was further stated that the suit landbearing Khasra No.48/6 and Khasra No.49/1
admeasuring 1.72 acres are self-acquired property
of Basan Bai, which was purchased by her by
registered sale deed dated 16.5.1983 and she has
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executed a registered Will on 11.2.2002 in favour
of defendant No.8-Mahesh, as such, the suit
deserves to be dismissed.
The trial Court after appreciating oral anddocumentary evidence available on record, by its
judgment and decree dated 30.4.2008, decreed the
suit in part holding that the suit property was
inherited by the plaintiff along with others after
death of Khem Singh and the plaintiff has
title/interest in the suit land and negatived the
plea of oral partition set-up by the defendants and
further held that Basan Bai is not owner of the
part of suit land bearing Khasra No. 48/6 and
Khasra No.49/1 and no right or title could be
conferred upon defendant No.8-Mahesh on the basis
of Will dated 11.2.2002 (Ex.D-5) allegedly executed
by Basan Bai in his favour and further held that
the plaintiff has failed to prove that the suit
land bearing Khasra No.175/3 area 0.70 hectares was
purchased from the income of ancestral property and
held that the plaintiff would only be entitled for
0.806 hectare of land and decreed the suit for
possession in respect of the said share. On appeal
being preferred by the defendants under Section 96
of the CPC, the first appellate Court reversed the
judgment and decree of the trial Court holding that
partition was effected in the year 1982 among Khem
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Singh and defendants No.1 & 2 and the suit land
bearing Khasra No.48/6 and Khasra No.49/1 area 1.72
acres was purchased by Basan Bai as the same has
not been purchased by her from income of ancestral
property and that has been validly bequeathed by
Basan Bai vide Ex.D-5 in favour of defendant No.8-
Mahesh and the plaintiff is entitled for 0.26
hectares of land left by her father Khem Singh.
Questioning the judgment and decree of the first
appellate Court, the plaintiff has preferred this
second appeal under Section 100 of the CPC before
this Court, in which substantial questions of law
have been formulated which have been set-out in the
opening paragraph of this judgment.
Mr.Shobhit Koshta, learned counsel for the appellant/plaintiff, would submit that the first appellate Court is absolutely unjustified in reversing the well merited and well reasoned judgment of the trial Court particularly with regard to the fact of partition by holding that partition was effected in 1982 among defendants No.1 & 2 and their father Khem Singh. He would further submit that widow Basan Bai was alive on the date of partition, therefore, she was also entitled for share in the partition held in 1982. Since widow was not given partition, therefore, itcannot be held that a valid partition was
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effectuated between Khem Singh and defendants No.1
& 2 and in order to hold that valid partition has
taken place, it must be proved that legal partition
giving share to the persons who are entitled
including widow/step-mother has taken place. He
would also submit that the defendants have not
filed a copy of sale deed by wich Basan Bai is
allegedly said to have been purchased the suit land
bearing Khasra No.48/6 and Khasra No.49/1 area 1.72
acres, as such, it is not proved that it is her
self-acquired property and these properties were
not ancestral properties of Khem Singh, as such,
the appeal deserves to be allowed and the judgment
and decree of the first appellate Court deserves to
be set aside.
Mr.Amit Soni, learned counsel for respondents No.1 to 7/defendants, while supporting the impugned judgment and decree, would submit that partition was effected between Khem Singh and defendants No.1 & 2, which is duly established, but merely on the ground that Basan Bai was not given share in the property held by Khem Singh, as such, a valid partition cannot be a brushed aside. He would also submit that the lands bearing Khasra No.48/6 and Khasra No.49/1 area 1.72 acres were self-acquired property of Basan Bai purchased by registered sale deed dated 16.5.1983 and therefore, that property7
has rightly bequeathed in favour of defendant No.8-
Mahesh by Will dated 11.2.2002, as such, the appeal
deserves to be dismissed.
I have heard learned counsel for the parties and considered their rival submissions made hereinabove and went through the record with utmost circumspection.(For the sake convenience, substantial question
of law No.2 would be taken first)
Answer to substantial question of No.2:-
The plaintiff pleaded that the entire suit lands including the lands bearing Khasra Nos.48/6 and 49/1 admeasuring 1.72 acres were ancestral properties in the hands of Khem Singh, therefore, after death of Khem Singh on 12.11.2001, she would also be entitled for share in that suit property, in which the defendants claimed that so far as the land bearing Khasra Nos.48/6 and 49/1 admeasuring 1.72 acres are concerned, it is self-acquired property of Basan Bai, which she purchased by registered sale deed dated 16.5.1983 and thereafter she bequeathed the said property in favour of defendant No.8-Mahesh on 11.2.2002.It is appropriate to note that the defendantsclaimed that Basan Bai has purchased the suit land
by registered sale deed dated 16.5.1983 though sale
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deed dated 16.5.1983 was not produced before the
trial Court as well as before the first appellate
Court and as such, this Court has no advantage to
look into the said document to hold that the said
property was purchased by Basan Bai and that was
her self-acquired property. The trial Court in
para-11 of the judgment has clearly recorded a
finding that the defendants have not produced any
documentary evidence to hold that the property was
purchased by Basan Bai out of her own income. No
document has been filed except the documents i.e.
Adhikar Abhilekh (Ex.P-4) and kistabandh khatouni
(Ex.D-2) in which name of Basan Bai is recorded as
agriculturist. It is well settled law that revenue
record does not create/confer any right or title
over the suit land. It is only for the purpose of
collecting revenue and to keep the records up to
date, as such, the trial Court has taken reasonable
view of the matter that it is not the self-acquired
property of Basan Bai in absence of documentary
evidence particularly sale deed by which Basan Bai
is said to have been purchased the suit land
bearing Khasra Nos.48/6 and 49/1 admeasuring 1.72
acres, it cannot be held that it was the self-
acquired property of Basan Bai merely on the basis
of revenue records, which the first appellate Court
unnecessarily interfered with without there being
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any material evidence on record and only on the
basis of presumption of Ex.P-4, which is only copy
of Adhikar Abhilekh as it has already been held
that revenue record does not confer any title and
held that the land bearing Khasra Nos.48/6 and
49/1 admeasuring 1.72 acres was self-acquired
property of Basan Bai, as such, finding recorded by
the first appellate Court is perverse and liable to
be set aside and that of the trial Court is
restored, in which it has been held that these
properties were not the self-acquired property of
Basan Bai.
Answer to substantial question of law NO.1 :-
It is the case of the plaintiff that no partition has taken place during lifetime of Khem Singh, who died on 12.11.2001, whereas the defendants in para3 of their written statement set-up a plea that partition took place during lifetime of Khem Singh between him (Khem Singh) and his two sons Bhukhan Singh (Defendant No.1) and Gyan Singh (defendant No.2), which the trial Court did not accept assigning valid reasons including that second wife Basan Bai was alive as she died on 21.4.2003 that she was not given any share in the suit property as she was admittedly entitled for share at that time.Mulla's Hindu Law, 23rd Edition, in Section 314it has been clearly stated that a wife cannot
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herself demand a partition, but if a partition does
take place between her husband and his sons, she is
entitled to receive a share equal to that of a son
and to hold and enjoy that share separately even
from her husband.
It is admitted position on record that Basan Bai was not given any share in the alleged partition which took place in the year 1982. In order to have valid defence of prior partition setting up a plea, it must be pleaded and established that valid partition in the eye of law has taken place giving share to the persons who are so entitled to share in the property.In the instant case, it is quite established that Basan Bai was not given any share in the alleged partition which took place between Khem Singh and defendants No.1 and 2, whereas Basan Bai, widow of Khem Singh, at that time, was fully entitled for share on the said partition and as such, the trial Court has rightly held that partition held in the year 1982 was not legal partition at all and it cannot be termed as partition and even if, it was taken place, it cannot be branded and styled as valid partition in the eye of law. It cannot be said as defence in a suit for partition filed by the plaintiff. The first appellate Court is totally unjustified in11
accepting the partition which was not found legal
in the eye of law and thereby fallen in legal error
in invalidating the decree of the trial Court and
thereby the impugned judgment and decree has become
invalid in law, as such, the judgment and decree of
the first appellate Court is set aside by answering
the substantial questions of law in favour of the
plaintiff and against the defendants and that of
the trial Court is restored.
The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).A decree be drawn-up accordingly. Sd/-
(Sanjay K. Agrawal)
Judge
B/-
2 issues framed by the court
Whether the lower appellate Court erred in holding that a prior oral partition has taken place between the husband and two sons without excluding the widow
Whether the land bearing Khasra No.48/6 & 49/1 area 1.72 acres is the self-acquired property of Basan Bai
Smt. Saraj Bai
Bhukhan
Gyan Singh
Indramani
Amrika Bai
Rajesh
Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court