A partition claim challenged a joint-family property sale made during the plaintiff's minority. The Court upheld the sale as binding, found no unity of title and possession, and held the suit barred by limitation and defective for non-joinder of necessary parties. The appeal was dismissed.
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.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 205 of 2008
8 to 11 are D/o Late Bhola Bhola Singh
Sl. No. 12 to 14 are sons of Late Pandit Ramadhar Mishra, resident of Village- Japla Dharhara, P.O.- Japla, P.S.Hussainabad, District- Palamau.
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… … Respondents ---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
--For the Appellants : Mr. Manjul Prasad, Senior Advocate Mr. Arbind Kr. Sinha, Advocate For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Kundan Kumar Ambastha, Advocate
21 /17.01.2019 This appeal has been filed against the judgment and decree dated 30.09.2008 passed by learned Sub-Judge-II, Daltonganj in Partition Suit No. 127 of 2002 whereby the suit has been dismissed.
2. From the records of this case it appears that the sole appellant, namely, Ram Raj Singh, was substituted vide order dated 23.02.2017 pursuant to I.A. No. 418 of 2010 and the counsel for the appellants was directed to carry out the necessary corrections in the cause title. However, it appears that while making necessary corrections in the cause title, there has been certain spelling mistakes. The name of the substituted appellant no (i) has been written as ‘Most. Mania Devi’ instead of ‘Most. Maina Devi’. The correct spelling has been mentioned in the petition for substitution as well as in the vakalatnama filed on her behalf. Similarly, the word “Kalan“ in the address portion of the substituted appellant no (ii) has been wrongly written as “Kalhan” and the word “Tetria” in the address
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portion of substituted appellant no (iii) has been wrongly written as “ Teteria” .
3. Office is directed to make necessary corrections and rectify the aforesaid spelling mistakes in the cause title.
4. A Partition Suit No. 127 of 2002 was filed by the original plaintiff namely, Ram Raj Singh, son of Late Jeodhar Singh seeking adjudication and declaration of the registered saledeed being number 347 dated 09.04.1940 executed by Late Babu Rajkeshwar Singh and Babu Bhola Singh, both sons of Late Jeodhar Singh of village Kathaundha Kalan, P.S. Hussainabad, District Palamau in favour of Late Pandit Ram Adhar Mishra (father of original defendant nos. 12 to 14) and Pandit Harihar Mishra, sons of late Ram Naresh Mishra resident of village Kusua, P.S. Hussainabad, District Palamau does not affect any right, title, interest and possession of the original plaintiff. The original plaintiff had also prayed for a preliminary decree for partition of suit land described in Schedule-A for his 1/3rd share in suit land and a further prayer was made for appointment of a Survey Knowing Advocate Commissioner to carve out Takhta for 1/3rd share of the plaintiff out of the suit land and then prepare a final decree.
5. The specific case of the plaintiff as per the plaint, in short , was as follows:-
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of the suit property from Dwarika Mishra (defendant no 12).
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6. Upon notice in the said suit, the defendant nos. 12, 13 and 14 filed a common written statement and defendant no. 15 filed a separate written statement. The defendant no 1 to 11 did not contest the suit.
7. The defendant nos. 12, 13 and 14 specifically raised, inter alia , the following points in the written statement:-
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and no demand for the suit land was ever in existence in the name of the plaintiff or his two brothers namely Late Babu Rajkeshwar Singh and Babu Bhola Singh. The purchaser has been paying rent even since prior to vesting of zamindari, which itself goes to show that neither the plaintiff nor his two brothers were in possession of the property even on the date of vesting of zamindari .
H. It was pleaded that it was incorrect on the part of the plaintiff to state that after one year from the death of Jeevdhar Singh, his sons and widow were separated in mess and residence. The fact is that even on the death of Jeodhar Singh and Panbasia Devi their legal representative namely Balkeshwar Singh, Bhola Singh and Ram Raj Singh were member of joint family and Rajkeshwar Singh being elder was karta of joint family. On the date of transfer through deed no. 347 dated 9.04.1940 the cultivation in villageKusua, P.S. Hussainabad was in joint cultivation managed by elder brother of Rajkeshwar Singh. It was also pleaded that since three sons of Jeodhar Singh, themselves, transferred their entire land of khata no. 36 of village Kusua in the year 1940, then there is no question of jointness amongst the legal representative of Jeodhar Singh and purchaser. Entire suit land except plot no. 66 mentioned in the Schedule ‘A’ in plaint was claimed to be in peaceful cultivating possession of these defendants with which
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neither plaintiff nor defendant nos. 1 to 11 have any concern.
K. After purchase of the property vide sale-deed being number 347 dated 09.04.1940 , Ram Adhar Mishra had 2/3rd share whereas Harihar Mishra had 1/3rd share in the purchased land of deed no. 347 dated 09.04.1940. The legal representative of Pandit Harihar Mishra made exchange of 1/3rd share of Khata no. 36 of village Kusua with legal representative of Pandit Ram Adhar Mishra i.e. defendant nos. 12 to 14 and in lieu of aforesaid land, defendant nos. 12 to 14 have given land in village Babubel District Balia, U.P. through registered deed of exchange no. 1799 of 1980 and since then defendant nos. 12 to 14 became owner and in possession of entire 19.34 acres of land of khata no. 36 of village Kusua. It is relevant to mention here that the registered sale deed no. 347 dated 09.04.1940, in respect of land of Schedule ‘A’ has been fully acted upon and, therefore, the defendants are in possession and also paying rent to the State. After the aforesaid sale Babu Rajkeshwar Singh purchased some property in village Kathaudha in his name and in the name of his brothers and also performed marriage of
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Bhola Singh out of the consideration received from the purchaser of the sale-deed being number 347 dated 09.04.1940.
8. So far as the defendant no. 15 is concerned, she has filed a separate written statement and the salient features of the written statement are as under:-
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purchased by Ram Adhar Mishra vide sale deed dated 09.04.1940 who came in possession of the property .
iii. During the life time of Ram Adar Mishra, he sold the property being khata no. 36, plot no. 30, area 2.97 acres to the husband of the defendant no 15 vide registered deed dated 18.04.1959 and thereafter mutation has been done and rent receipts were issued. The husband of defendant no 15 had gifted the property to the defendant no 15 vide registered deed no. 38 dated 06.01.1973/ 12.01.1973 and pursuant thereto mutation has already been done in favour of the defendant no 15 and rent receipts were also issued.
9. The learned trial court framed the following issues for consideration: -
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10. The learned trial court while deciding issue nos. 6, 7 and 8 held as follows:-
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registered deed dated 18.04.1959 (exhibit B-1) which was given to the defendant no 15 by her husband vide registered deed no 38 dated 06.01.1973/ 12.01.1973 (exhibit C-1) and accordingly the legal heirs of defendant no. 15 came in possession of the property after her death.
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and void ab-initio and was not voidable , and held that as the property was sold on behalf of the joint family and for the benefit of the joint family , the sale-deed no. 347 dated 09.04.1940 was not null and void as claimed by the plaintiff and accordingly , ad-valorem court fees was payable and it was open to the plaintiff to file appeal upon payment of ad-valorem court fees and the court fees paid was held to be insufficient.
11. Thus the learned trial court decided all the issues against the plaintiff.
12. Counsel for the appellants, during the course of argument, has submitted as under :-
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accordingly, the said sale-deed is not binding on the plaintiff. He submits that this aspect of the matter has not been properly considered by the learned trial court.
13. Considering the submissions of the appellant and the materials on record , this court find that the point for determination in the instant case would be as follows:-
“Point no. No. 1- Whether the sale –deed no. 347 dated 09.04.1940 executed by the brothers of the plaintiff in connection with the suit property is valid, legal and binding on the plaintiff?
Point no. 2- Whether there is a jointness of possession and title with respect to schedule land in between plaintiff and defendants so as to entitle the plaintiff to grant of preliminary decree and allotment of separate Takhta of 1/3rd share with respect to schedule property?
Point no. 3 – Whether the suit is barred by limitation?
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Point no. 4 - Whether the suit is barred by non-joinder of necessary parties?”
14. From the records of the learned court below it appears that the plaintiff had given following evidences : -
15. The evidences of the witnesses on behalf of the plaintiff are as under:-
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namely Kathaudha and Kusua and the property at Kathaudha was already partitioned amongst the family of the three bothers but the property at Kusua, which is the suit property was never partitioned . He has deposed that the defendant nos. 1 to 11 are the legal heirs and successors of his two brothers. He has stated that in the sale-deed being number 347 dated 09.04.1940 itself it was mentioned that the property was being sold as some property was required to be purchased at Kathaudha, but no such property was ever purchased . He has also deposed that his brother Bhola Singh expired in the year 2000 and after his death there was quarrel amongst the bataidars and when he started insisting for measurement and partition , he came to know for the first time on 15.08.2002 that the property has been sold as back as in the year 2002. He has also stated that he used to live in Kathaudha and accordingly he used to cultivate the land at Kusua through bataidar. However in his entire evidence he has not disclosed the name of bataidar to whom he claims to have given the property for cultivation . It has been stated that the sale deed dated 09.04.1940 was null and void as by the sale deed, the brothers of the plaintiff had illegally sold his share of the property also. It was also stated by the plaintiff (P.W.-1) that the plaintiff continues to have joint possession over the suit property. During cross examination , the plaintiff had stated that he has been paying rent in connection with the suit property but neither any details were provided by him during cross- examination nor any rent receipts in connection with the suit property were produced or exhibited.
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ii. The plaintiff witness P.W.- 2, Kameshwar Singh has stated that the disputed property is being cultivated jointly by the plaintiff and the defendants. The total area of suit land is 19.34 acres, out of which 1/3rd is of plaintiff and 2/3rd is of his two brothers and at present, Defendant No. 15 is in possession of 2.50 acres. He has also stated that there has been no partition of the suit property by metes and bounds amongst the parties. In his cross-examination, the P.W. 2 has stated that the Defendant No. 15 is cultivating his land for 25 to 30 years, but cannot specify the boundary of 2.50 acres being cultivated by Defendant No. 15.
iii. So far as the third witness of the plaintiff, P.W-3, Ramnandan Yadav is concerned, he claims to be the bataidar. He has stated in his deposition that he knows both the parties to the suit and the suit property is in occupation of plaintiff and defendant nos. 12 to 15 and he has a plot adjoining to the suit plot. He has also deposed that the plaintiff gets his land cultivated through him and he is the bataidar of the plaintiff. During his cross-examination, he has stated that he has never seen the plaintiff giving rent in connection with the suit property. He has further stated during cross-examination by defendant no. 15 that on 18.04.1959, Ram Bilas came in possession of the property and the defendant no. 15 came in possession when said Ram Bilas gifted the property to his wifei.e to defendant no. 15. He has not stated in his deposition as to whether he used to give the share of the produce from the suit land to the plaintiff.
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joint possession of the plaintiff and the defendants and is ancestral property of plaintiff and his elder brothers have sold their share but the plaintiff has not sold his share. He has also stated that Ram Nandan Yadav cultivated the land as bataidar of the plaintiff.
16. The defendant nos. 12 to 14 have examined altogether 7 witnesses who are as follows:-
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he has always seen Plot No. 36 area 19.34 decimals in village Kusua in the possession of father of defendant nos. 12 to 14 and at present, except Plot No. 66, the rest land is in physical possession of defendant nos. 12 to 14. He further stated that so far as Plot No. 30, area 2.97 decimal is concerned, the same is in possession of wife of Ram Bilash Bhagat (defendant no 15). He has further stated that in entire Khata No. 36, the plaintiff Ram Raj Singh has no possession. This witness has also stated that the land of Khata No. 36 was purchased by Ram Adhar Mishra and Harihar Mishra by registered document from Rajkeshwar Singh and his brothers and even in Khatiyan, the name of Jagannath Mishra and others is appearing.
D. Shri Jagannath Mishra has been examined as defendant witness no. 4. He has deposed that he is defendant no. 14 and he is the brother of defendant nos. 12 and 13 and accordingly, he has deposed on behalf of the defendant nos. 12 to 14. He has deposed that the property contained in Schedule A to the plaint was belonging to Pandit Ram Adhar Mishra and Harihar Mishra, who had purchased the property by way of registered deed No. 347 in the year 1940 and the said property was sold by Rajkeshwar Singh, his brother Bhola Singh and his minor brother Ram Raj Singh by way of registered deed and by selling this property, Rajkeshwar Singh, Bhola Singh and Ram Raj Singh had purchased another property in village Kathaunda Kala by registered deed dated 08.05.1940(Exhibit-E). He further submits that on the basis of such purchase, Pandit Ram Adhar Mishra and Harihar Mishra came in possession of entire 19.37 decimal in village Kusua and after purchase it was recorded in the name of Pandit Ram Adhar Mishra, who also paid rent to the State and rent receipts were issued in his name. He
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further stated that prior to abolition of Zamindari the said property in Khata No. 36 Gram Kusua stood recorded in the name of Pandit Ram Adhar Mishra and as per the sale-deed no. 347 dated 09.04.1940, the share in the property of Harihar Mishra and Pandit Ram Adhar Mishra was to the extent of 1/3rd and 2/3rd respectively. The son of Pandit Harihar Mishra namely, Akshayat Nath Mishra handed over the property to defendant nos. 12 to 14 and instead of that the defendant nos. 12 to 14 and Akshayat Nath Mishra jointly purchased another property vide deed no. 1799 dated 23.06.1980. Pandit Ram Adhar Mishra sold a portion of the property to Ram Bilash Bhagat which is now in possession of his wife who is defendant no. 15. Under the present revisional survey, Khata No. 36 stands recorded in the name of defendant nos. 12 to 14. He has also deposed that Panbasia Devi, mother of the plaintiff and wife of Jeodhar Singh expired in the year 1938. He has stated in para 13 of his deposition that the property in Khata No. 36, Gram Kusua was purchased by Ram Adhar Mishra and Harihar Mishra in the year 1940 and after death of Ram Adhar Mishra, there was certain exchange of property and the property was ultimately held and possessed by defendant nos. 12 to 14 and accordingly, he has submitted that the plaintiff and defendant nos. 1 to 11 have no concern with the property involved in this case and they have no possession over the property and it is wrong to say that the plaintiff has 1/3rd share of the scheduled property. He has also stated that it is wrong to say on the part of the plaintiff that he came to know about the deed of the year 1940 only on 02.09.2002. On recall, this defendant has exhibited the deed of exchange bearing no. 1796 dated 23.06.1980 (exhibit-B) and has also exhibited the Zamindari receipt (four in
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numbers) which was marked as Exhibit-C to Exhibit- C/3. He also exhibited the sale-deed no. 347 dated 09.04.1940 which was marked as Exhibit- D.
17. The D.W. No. 7 is Mathura Singh is a formal witness who had prepared certified copy of the deed in the year 1989.
18. The evidence of the defendant no 15 are as under:-
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Adhar Mishra by registered deed who came in possession of the property and thereafter, he gifted this property to his wife i.e. defendant no. 15, who accepted the gift and came in possession of the property, which has been mutated in her name and rent receipts are being issued. He has also stated that the original defendant no. 15 has expired and she has been substituted by her legal heirs.
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has exhibited the rent receipt as well as the gift deed dated 06.01.1973. He has further stated that Jeodhar Singh had three sons namely, Rajkeshwar Singh, Bhola Singh and Ram Raj Singh and his wife was Panbasia Devi. They had land in Kusua as well as Kathaudha village and the land in Kusua village was 7 to 8 kilometers away from Kathaudha village. Sons of Jeodhar Singh sold the property in Kusua village to Pandit Ram Adhar Mishra and Pandit Harihar Mishra in the year 1940 and the said purchasers came in possession of the property. There was a partition amongst both the purchasers and accordingly, the property in Khata No. 36 village Kusua was owned and possessed by Ram Adhar Mishra and rent receipts were also issued in his favour. Out of this Khata No. 36, Plot No. 30 area 2.97 acres were sold to his father in the year 1959 and the property was mutated and was possessed by his father which was subsequently gifted to his mother in the year 1973. During his cross-examination, he has stated that the plaintiff does not have any share in the suit property and there is no unity of title and possession in connection with the property involved in this case.
19. This court finds that the genealogy of the family of the plaintiff is admittedly as under ( the date of death of Panbasia devi is claimed to be 1943 as per the plaintiff and 1938 as per the defendant no. 15) :-
Durga Singh
Jeodhar Singh(Recorded Raiyat) Died in 1934 = Panbasia Devi (Died in 1943).
Sheoran Singh (Recorded Raiyat) (Died issueless in 1930).
Babu Rajkeshwar Singh Babu Bhola Singh Ram Raj Singh (Died in 1974). (Died in 2000). (Plaintiff). ----------------------------------------------------------------------------------
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| Alakhdeo | Laxaman | Urmila | Pramila | Shila | Nirmala |
|---|---|---|---|---|---|
| Singh Deft. 6) |
Singh (Deft. 7) |
Devi (Deft. 8) |
Devi (Deft. 9) |
Devi (Deft. 10) |
Devi (Deft.11) |
| -------------------- Madan Singh. (Deft. 1). |
Babu Rajkeshwar Singh (Died in 1974) -------------------------------------- (Kapildeo Singh). (Deft. 2). ------------------- Anil Kumar Singh. (Deft. 4). |
-------------- (Nandeo Singh (Died in 1973) = Malti Devi (Deft. 3). ---------------------- Puspa Devi (Deft. 5). |
|---|
20. Admittedly, the property was recorded in the name of Jeodhar Singh and Sheoran Singh both sons of Durga Singh. Sheoran Singh died issueless in the year 1930 and property devolved upon his brother Jeodhar Singh. Jeodhar Singh died in 1934 leaving behind him his wife Panbasia Devi, Babu Raj Keshwar Singh, Babu Bhola Singh and Ram Raj Singh. In the year, 1934, Ram Raj Singh was minor and Babu Raj Keshwar Singh and Babu Bhola Singh were major.
21. It is specific case of the plaintiff that Babu Raj Keshwar Singh and Babu Bhola Singh were living separately and Panbasia Devi started living with the plaintiff with 1/3rd share as plaintiff was a minor. The grievance of the plaintiff is that vide sale deed number 347 dated 09.04.1940 ( exhibit 2 and D ) Babu Raj Keshwar Singh and Babu Bhola Singh sold the suit property which is Khata No. 36 in Kusua village without consent of his natural guardian i.e. Panbasia Devi. Although in the sale deed it is mentioned that in lieu of the property, another property at Kathaudha Kalan would be purchased but no such property was purchased. Accordingly, the sale deed dated 09.04.1940 is null and void and not binding on the plaintiff and he is entitled to 1/3rd share over the property. Specific case of the plaintiff was that the property in Kathaudha
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Kalan was already partitioned amongst the three brothers but property at Kusua ( suit property ) was not partitioned . Further, the plaintiff was living at Kathaudha Kalan, therefore, suit property at Kusua was being cultivated by him through bataidar. He also claimed that he was in possession of the suit property and paid rent to the State, but no rent receipt or proof of any such payment of rent was produced by the plaintiff. This court further finds that the name of bataidar was neither mentioned in the plaint nor in the deposition of the plaintiff (P.W.- 1).
FINDINGS ON THE THIRD POINT OF DETERMINATION AS MENTIONED ABOVE.
22. On the point of limitation, the specific case of the plaintiff was that he had no knowledge of the sale deed dated 09.04.1940 and he was through out in possession of the suit property . His brother Babu Bhola Singh died in the year 2000 and upon his death, there was some dispute amongst the bataidars on account of which the plaintiff faced trouble in cultivating the suit property and accordingly, he asked for partition by metes and bounds on 15.08.2002 and upon this, the defendant No. 12 to 15 showed him the sale deed dated 09.04.1940. Thereafter, he took out the certified copy of the sale deed and filed the suit in the year 2002 itself challenging the sale deed and claiming 1/3rd of the suit property. The sale deed dated 09.04.1940 has been marked as Exhibit- 2 and also Exhibit- D.
23. From the evidences produced by the plaintiff, it is apparent that he has not been able to prove his possession over the suit property by adducing cogent evidence. He has claimed that the property was being cultivated by him through bataidar but has neither named the bataidar in his plaint nor in his evidence when he deposed as P.W.-1.
24. One person namely, Ramnandan Yadav has been examined as P.W.- 3, who has claimed himself to be bataidar of
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the plaintiff, but he has not stated that any produce of the land was ever handed over to the plaintiff . He has stated in his deposition that he knows both the parties to the suit and the suit property is in occupation of plaintiff and defendant nos. 12 to 15 and he has a plot adjoining to the suit plot. He has also deposed that the plaintiff gets his land cultivated through him and he is the bataidar of the plaintiff. During his crossexamination, he has stated that he has never seen the plaintiff giving rent in connection with the suit property. He has further stated during cross-examination by defendant no. 15 that on 18.04.1959, Ram Bilas came in possession of the property and the defendant no. 15 came in possession when said Ram Bilas gifted the property to his wife i.e. to defendant no. 15.
25. The plaintiff has claimed that he has been paying rent to the State in connection with the suit property, but no such rent receipts have been produced. Further, the witnesses of the plaintiff i.e. P.W.- 2 has stated that Defendant No. 15 has been cultivating a portion of the suit property for last 25 to 30 years. At this stage, it is relevant to point out that it is the specific case of the Defendant Nos. 12 to 15 that Defendant No. 15 has come in possession of a portion of the suit property through the purchasers of the sale deed dated 09.04.1940.
26. Considering the evidence adduced on behalf of the plaintiff, this Court finds that the plaintiff has miserably failed to prove his possession over the suit property and accordingly, the contention of the plaintiff that he has no knowledge of sale deed dated 09.04.1940 as he continued to be in possession of the suit property and he came to know about it only in the year 2002 when the sale deed was shown to him by the defendant nos. 12 to 15 , has not been proved by the plaintiff.
27. Section 101 of the evidence Act, 1872 deals with burden of proof. It reads as under:-
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“101. Burden of proof- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
28. Thus the evidence Act clearly lays down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove the case. 29. In the instant case it is the plaintiff who asserted that he had no knowledge about the execution of the sale deed dated 09.04.1940 till 2002 as he was in possession of the suit property throughout, accordingly it was for the plaintiff to prove these facts in order to discharge his burden of proof, which he has miserably failed to discharge in the instant case. Considering the evidences on record, as discussed above, this Court finds that the plaintiff has failed to prove that he had no knowledge about the execution of the sale deed dated 09.04.1940 till 2002 as he was in possession of the suit property throughout.
30. On the other hand, the defendants have not only proved that sale deed dated 09.04.1940 was executed, but have also proved that the same was also acted upon by the purchasers of the property who are now represented by the defendant nos. 12 to 14, who were duly put into possession followed by issuance of rent receipts in the name of the purchaser. The various rent receipts have been exhibited by the defendant nos. 12 to 15 in connection with the suit property as already mentioned above. The sale deed dated 09.04.1940 was further acted upon in as much as the husband of the defendant no. 15 had purchased a portion of the suit property vide sale deed dated 18.04.1959 who came in possession and rent receipts were also issued in his name. Further, the husband of the defendant no. 15 gifted
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the property purchased by him to the defendant no. 15 by a registered deed no. 38 dated 06.01.1973/ 12.01.1973 and she came in possession and rent receipts were also issued in her name. Even the witnesses of the plaintiff (P.W-3) during examination before the learned trial court has admitted the possession of defendant no. 15 over a portion of the suit property.
31. Thus this Court is of the considered view that the case of the plaintiff that he had no knowledge about the execution of the sale deed dated 09.04.1940 till 2002 as he was in possession of the suit property throughout, is far from truth.
32. This Court further finds that admittedly the plaintiff was only 13 years of age on 09.04.1940, but even after attaining majority, he did not take any steps to challenge the sale-deed dated 09.04.1940 and after expiry of more than 60 years, the suit was filed in the year 2002 i.e. much after attaining majority by the plaintiff . Accordingly, this Court finds that the suit was hopelessly bared by limitation.
33. While deciding issue no. 3 regarding point of limitation , the learned trial court considered the date of knowledge as claimed by the plaintiff and rejected his claim on account of the reason that the plaintiff could not prove his possession over the property at any point of time after the execution of sale-deed no. 347 dated 09.04.1940 and even could not show any payment of rent to the State and even could not prove that any part of the produce of the property was ever given to the plaintiff and accordingly held that the plaintiff throughout had knowledge about the sale of the property and consequently held that the suit was barred by limitation.
34. This Court further finds that the learned trial court has rightly considered and held that the suit was barred by limitation , and such finding of the learned trial court does not call for any interference.
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FINDINGS ON THE FIRST AND SECOND POINT OF DETERMINATION AS MENTIONED ABOVE.
35. So far as the legality and validity of the sale deed dated 09.04.1940 is concerned, this Court finds that admittedly on 09.04.1940, the plaintiff was minor and his father had expired. Admittedly, Raj Keshwar Singh was the eldest male member of the family and admittedly the parties are governed by Mitakshara school of hindu law. Admittedly, in the sale deed dated 09.04.1940 it was mentioned that the suit land was being sold as some property at Kathaundha Kalan, where the family had other properties, was required to be purchased for the benefits of the family and it has come in evidence of the defendants that some property at Kathaudha Kalan was actually purchased in the name of three brothers including the plaintiff vide registered sale deed dated 08.05.1940 for value. The plaintiff witness no. 6 has exhibited a sale deed of the year 1951 and had submitted before the learned trial court that the vendor of registered sale deed dated 08.05.1940 had no title. The learned trial court has rejected this plea of the plaintiff on the ground that the deed dated 08.05.1940 which was purchased by Raj Keshwar Singh in his name and in the name of his brothers is valid till it is set-aside. This Court is of the considered view that the fact remains that the purpose for which the sale deed dated 09.04.1940 was executed was duly carried out by Rajkeshwar Singh, the eldest brother of the plaintiff, who was admittedly the eldest male member of the family. By the aforesaid conduct of Rajkeshwar Singh, this Court is of the considered view that the action of Rajkeshwar Singh was bona fide and in the interest of joint family as was thought prudent at the relevant point of time.
36. This Court is of the considered view that when a person who after attaining majority questions any sale of any property by the karta of the joint hindu family when he was a minor ,
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the burden lies on the person who upholds the sale not only that the person had the power to sell but the whole transaction was bona fide and was for the benefit of the family itself including the minor.
37. This Court finds that this burden has been duly discharged by the defendant nos. 12 to 15 in the facts and circumstances of this case.
38. In the judgement passed by the Hon’ble supreme court reported in (1991) 3 SCC 442 it has been held in para 12 and 13 as under :-
“12. In Raghavachariar’s Hindu Law Principles and Precedents (8th edn., 1987 in Section 275 at p. 239) stated thus:
“So long as the joint family remains undivided, the senior member of the family is entitled to manage the family properties, and the father, and in his absence, the next senior most male member of the family, as its manager provided he is not incapacitated from acting as such by illness or other sufficient cause. The father’s right to be the manager of the family is a survival of the patria potestas and he is in all cases, naturally, and in the case of minor sons necessarily the manager of the joint family property. In the absence of the father, or if he resigns, the management of the family property devolves upon the eldest male member of the family provided he is not wanting in the necessary capacity to manage it.”
13. Regarding the management of the joint family property or business or other interests in a Hindu joint family, the karta of the Hindu joint family is a primus inter pares. The managership of the joint family property goes to a person by birth and is regulated by seniority and the karta or the manager occupies a position superior to that of the other members. A junior member cannot, therefore, deal with the joint family property as manager so long as the karta is available except where the karta relinquishes his right expressly or by necessary implication or in the absence of the manager in exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that his return within the reasonable time was unlikely or not anticipated. No such circumstances are available here to attract the facts of the case.”
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39. Thus this Court finds that Rajkeshwar Singh being the eldest male member of the family was the karta of the family in spite of the plea of the plaintiff that the mother of the plaintiff was alive. This Court is further of the considered view that in absence of the father, the eldest male member of the family governed by Mitakshara School of Law, acquires the status the Karta of the family and for that, no declaration as such is required. The contention of the plaintiff that Rajkeshwar Singh could not have sold the property as he was never declared to be the manager or karta of the family that too without consent of his mother, is hereby rejected. Accordingly, Rajkeshwar Singh, in the capacity of the Karta of the joint family, had the right to deal with the properties of joint family and his dealings cannot be questioned so long as they are bona fide and for the benefit of the family including his minor brother(plaintiff).
40. It is not the case of the plaintiff that prior to execution of sale deed dated 09.05.1940, there has been a partition in the family. Rather, his case is that his two brothers who were major started living separately and plaintiff was living with his mother as he was a minor and subsequently the properties in the village Kathaudha have been partitioned amongst the joint family members but the suit property falling in another village Kuswa was not partitioned.
41. In such circumstances, the learned trial court was right in holding that the elder brother of the plaintiff namely, Rajkeshwar Singh had rightly sold the property for value vide sale deed dated 09.04.1940 and such sale was not for his personal use, but for the interest of the family and pursuant to such sale, he bought another property in the joint name of the brothers . Accordingly, this Court is of the considered view that the learned trial court has rightly held that the sale -deed dated 09.04.1940 is binding on the plaintiff and has rightly come
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to a finding that the plaintiff is not entitled to any partition with respect to the suit property and claim 1/3rd share of the same. This Court finds that the suit property having been already sold and possession handed over to persons outside the joint family, ceases to be a part of joint family property of the plaintiff and his brothers and accordingly there is no unity of title and possession with respect to the suit property. The third parties to whom the suit property has been sold are represented through defendant nos. 12 to 15 who have contested the suit.
42. Accordingly, this Court finds that the sale deed no. 347 dated 09.04.1940 executed by the brothers of the plaintiff in connection with the suit property is valid, legal and binding on the plaintiff. This Court finds that all aspect of the matter with regard to the first and second point for determination by this Court, as indicated above, has been rightly decided by the learned trial court against the plaintiff after considering the materials on record, which does not call for any interference.
FINDINGS ON THE FOURTH POINT OF
DETERMINATION AS MENTIONED ABOVE.
43. So far as the point regarding non-joinder of necessary parties is concerned, this Court finds that admittedly the defendants had taken the plea of non-joinder of necessary parties by clearly stating that the daughters of Rajkeshwar Singh were not made defendants in the suit and during the trial, the witnesses of the plaintiff including the plaintiff himself, have not stated that Rajkeshwar Singh had no female legal heir and representative to be made defendant in the suit . In such circumstances, this Court is of the considered view that the learned trial court rightly decided that the suit was hit by non joinder of necessary parties. It is relevant to note that on this point no arguments have been advanced by the counsel for the appellants.
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44. As a cumulative effect of the aforesaid findings, this Court is of the considered view that all the points for determination by this Court stands answered above against the appellants and in favour of the respondents. Accordingly, the judgment passed by the learned trial court does not call for any interference. This appeal is hereby dismissed.
(Anubha Rawat Choudhary, J.)
Pankaj
3 issues framed by the court
Was the joint-family property sale by the eldest brother as karta binding on the minor brother, defeating his subsequent claim for partition?
Was the suit challenging the sale barred by limitation despite the plaintiff's claim of recent knowledge?
Was the suit defective for non-joinder of the deceased brother's daughters?
Colour shows how this judgement treated each authority
(1991) 3 SCC 442Relied on¶38
1 provisions across 1 enactments
Most. Maina Devi
Ajay Singh
Reta Devi
Namita Devi
Madan Singh
Kapildeo Singh
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
