Laxman Mandal Vs Gauri Devi Alias Bina Devi

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2025:JHHC:20018

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.85 of 2020

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1. Laxman Mandal, aged about 75 years, son of late Ludhu Mandal (dead- deleted vide order dated 04.09.2024)

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Nageshwar Mandal, aged about 55 years, son of Sri Laxman Mandal

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Jageshwar Mandal, aged about 30 years, son of Sri Laxman Mandal All are resident of village-Kaknia, P.O-S.C. Saraiya Circle, Saraiyahat, P.S. Saraiyahat, District-Dumka

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..... Defendants/ respondents/Appellants

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Versus

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Gauri Devi @ Bina Debi, daughter of Late Bibhuti Mandal @ Tetu Mandal and wife of Sri Nunulal Mandal, Resident of Village-Kaknia, S.C. Saraiya, P.O. and P.S. – Saraiyahat, District- Dumka

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…. Plaintiff/appellant/Respondent

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. Jay Prakash Jha, Sr. Advocate Mr. Aishwarya Prakash, Advocate For the Respondent : Mr. R.N. Prasad, Advocate Mr. Manoj Kumar No.4, Advocate

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-----

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8/21.07.2025 This 2^nd appeal has been filed against the judgement and decree

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dated 07.01.2020/ 20.01.2020 passed in civil appeal no. 11 of 2016 by which the judgement and decree dated 14.12.2015/ 05.01.2016 passed by the learned Senior Civil Judge -III, Dumka in title (partition) suit no. 42 of 2005 has been reversed. The suit was dismissed on contest and the appeal was allowed by the learned 1^st appellate court. Consequently, the defendants are the appellants before this court.

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This 2^nd appeal was admitted vide order dated 28.03.2023 on the following substantial questions of law:

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(i) Whether the learned First Appellate Court of committed perversity by misconstruing the Ext. A; not to be a family arrangement between the parties to the suit and their ancestors?

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(ii) Whether the learned First Appellate Court committed a perversity in not holding that there was prior partition between the parties to the suit and their ancestors?

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Arguments of the Appellants.

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The learned counsel for the appellants has submitted that answer to the substantial question of law No.(ii) would be directly dependent on the answer to the substantial question of law No.(i). If the 1^st substantial question of law is answered in favour of the appellants, then automatically the 2^nd substantial question of law would follow in favour of the appellants.

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With respect to the 1^st substantial question of law, the learned counsel has referred to Exhibit-A and has submitted that it was a family arrangement between the parties to the suit and their ancestors. He has also submitted that Exhibit-A was not an amicable arrangement for their convenience, rather it was a panchnama dated 28.05.1978, wherein the previous partition was reduced into writing . He submits that Exhibit-A reveled that there was a family settlement and therefore there was no occasion to hold that the property was still joint and could be subject matter of partition.

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The learned counsel relied upon the judgment passed by the Hon’ble Supreme Court reported in (1994) 4 SCC 294 , paragraph 15 and 16, to submit that otherwise also there cannot be partial partition as there were other properties, which were not included in the suit.

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The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in 2020 (3) JBCJ 455 [SC] and

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has in particular referred to paragraph-14 thereof to submit that the family settlement made amongst the family members has been given much weightage as the same seeks to sink their differences and disputes and settle and resolve their conflicting claims and disputed titles once and for all times to come and by peace and harmony amongst themselves and such annulment ought to be governed by special equity peculiar to them and would be enforced if honestly made.

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The learned counsel has submitted that the Exhibit-A was a family arrangement and therefore the 1^st substantial question of law is fit to be answered in favour of the appellants and against the respondent.

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He has submitted that so far as the 2^nd substantial question of law is concerned, if Exhibit-A is held to be a family arrangement, the natural corollary would be that there was a previous partition and therefore there could not be any fresh partition. After partition, there can be no unity of title and unity of possession between the parties with respect to the suit land.

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Arguments of the respondent.

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The learned counsel appearing on behalf of the respondent has opposed the prayer and has submitted that the specific case of the defendants before the Court was that there was previous partition by virtue of Exhibit-A. The learned counsel has submitted that Exhibit-A cannot be termed to be a document of partition and hence cannot be termed to be a document of family arrangement,

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inasmuch as the Exhibit-A did not mention as to which portion of the property will go to one or the other brother and it also did not mention as to which portion of 08 katha of the land will be given to the mother as maintenance.

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10.The learned counsel submits that exhibit-A was at best a document of convenience and there has been no partition by metes and bounds and therefore the suit for partition was maintainable. He has further submitted that even if assuming that Exhibit-A is a family settlement, then also, by no stretch of imagination, Exhibit-A can be said to be a memorandum of partition and consequently, it would require registration and in absence of registration, the Exhibit-A would have no evidentiary value.

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11.He has also relied upon the judgment passed by this Court reported in 2002 AIR – Jhar. H.C.R. 1108 (Rupan Devi and others versus Jamuna Devi and others) and has referred to the substantial question of law framed therein and has submitted that an argument was advanced in the said case that the document in question was a memorandum of partition and therefore even if unregistered was admissible in evidence; however the court recorded that the said document did not mention any recital of previous partition and therefore it was held that it cannot be termed as memorandum of partition and therefore, it was held to be not admissible in evidence due to want of registration.

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12.The learned counsel submits that Exhibit-A at best would be a document of convenience with respect to possession of property and therefore in absence of any previous partition, the suit for partition was maintainable and the substantial questions of law are fit to be answered against the appellants and in favour of the respondent.

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Findings of this court.

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13.There can be no dispute that 2^nd appeal has to be decided within the contours of the substantial questions of law as framed by the court. The 1^st substantial question of law is with respect to the construction of Ext. A and the 2^nd substantial question of law is with regards to plea of previous partition raised by the defendant on the strength of exhibit-A. It has been rightly submitted by the learned counsel for the appellant that if 1^st substantial question of law is answered in favour of the appellant, the answer to the 2^nd substantial question of law will automatically follow to be in favour of the appellant.

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14.A suit for partition by metes and bounds was filed by Gauri Devi, daughter of late Bibhuti Mandal, claiming half share of suit property described in schedule-A & B of the plaint. It was her case that the land pertaining to JB No.30 of mauza Kakania was exclusively recorded in the name of Ludhu Mandal, which was described in schedule ‘A’ and Plot No.124 measuring an area of 45 decimal in mauza Kakania was occupied by said Ludhu Mandal through settlement and plot No.134 measuring 21 decimal was occupied by the father of the plaintiff and the defendant No.1 through settlement

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and it was described in schedule ‘B’ of the plaint. Schedule ‘A’ & ‘B’ property of the plaint were claimed to be the joint property of plaintiff and defendant and they were termed as suit property. It was her case that Ludhu Mandal has died leaving behind his two sons Bibhuti Mandal and Laxman Mandal, who jointly inherited the suit property exclusively recorded in the name of Ludhu Mandal and both the brothers remained in joint possession of the suit property. Bibhuti Mandal died in the year 1999 leaving behind his daughter Gauri Devi, the plaintiff, who is the heir and successor of Bibhuti Mandal. Laxman Mandal son of Ludha Mandal was the defendant No.1 and the defendant No.2 & 3 are sons of Laxman Mandal. It was also her case that certain other properties were ancestral joint properties and the same were left out from the suit property as that would include by a large number of co-sharers and the plaintiff reserved their right to file partition suit, if any. Thus, the suit property included the properties of Ludha Mandal who had two sons, namely, Bibhuti Mandal and Laxman Mandal; the plaintiff was daughter of Bibhuti Mandal being his legal heir and successor and the defendants were legal heirs and successors of Laxman Mandal.

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15.A written statement was filed by the defendants. A specific stand was taken by the defendants that there was a previous partition in the year 1978 by the mother of Bibhuti Mandal and Laxman Mandal with the help of Panches and a memo of panchnama dated

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28.05.1978 was also prepared, in which, the land of Ludhu Mandal was partitioned ½ & ½ allotting ½ to the Bibhuti Mandal and other ½ to Laxman Mandal and 08 kathas allotted to Nuneshwari Devi, the mother of Bibhuti Mandal and Laxman Mandal and consequently a plea of previous partition was raised. A plea of nonjoinder of parties and partial partition was also raised. The genealogy as given by the plaintiff was not in dispute.

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16.The learned trial has framed as many as eight issues, which are as follows:

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i) Is the suit maintainable in its present form? ii) Has the plaintiff valid cause of action for the present suit? iii) Is the suit bad for non-joinder of necessary parties? iv) Is the suit bad for seeking partial partition?

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v) Is there unity of title and possession in between the parties? vi)Whether suit property has already been partitioned in between the parties?

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vii) Is the plaintiff entitled to the claimed relief/reliefs? viii) To what other relief or reliefs, the plaintiff is entitled to?

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17.The Panchnama dated 28.05.1978 was produced by the defendants and was marked as Exhibit-A, which is the bone of contention between the parties as is apparent from the substantial question of law as framed. The Issue No.4,5 & 7 were taken up together and on behalf of the plaintiff, it was contended before the learned trial court that the said document, i.e. panchnama Exhibit–A was not admissible on numerous grounds:

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(a) It was neither registered nor stamped.

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(b) It does not appear to be a yadastnama, i.e. memorandum.

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(c) It does not state as to which land were allotted to defendants and which land to his brother father of the plaintiff.

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(d) The document Exhibit-A neither was admissible nor indicated partition by metes and bounds.

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It was also urged by the plaintiff that under Mitakshara school of Hindu Law, there is presumption of jointness and there was no proof that partition had already taken place as claimed by the defendants.

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It was argued by the defendant that Ludhu Mandal died leaving behind two sons and his wife, who also died in the year 1985, and the two sons, namely, Bibhuti Mandal and Laxman Mandal, partitioned and separated their land with the help of panches and a paper was written which was witnessed by the panches. Land of Ludhu Mandal was partitioned ½ and ½ to Bibhuti Das and Laxman Mandal and 08 kathas were allotted to their mother in the year 1978 and thereafter they came in exclusive possession of their respective shares. It was asserted that the partition was done on mutual consent and agreement and not for convenience and therefore there was no cause of action to file the suit for seeking partition.

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The learned Trial Court after considering the materials on record held in paragraph-27 & 30 that there was a partition made between both the parties in the year 1978 and specific share was allotted in family arrangement in the year 1978. The findings in paragraph 27 to 30 are quoted as under:

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“27. There is presumption of jointness in Hindu family. The jointness in the Hindu family comes to an end when a

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partition is proved. When a partition is proved, then it will be presumed that the partition was by metes and bounds, unless it is rebutted in evidence by the other side, if the plaintiff comes with a clean case that though there was a partition. Yet there was no division by metes and bounds, the Court can certainly reopen a partition if it is proved to the satisfaction of the court that though there was partition of share. Still the properties were not divided by metes and bounds. That is not the case either in the plaint or in the evidence. The defendants have proved conclusively in the present case that there was a partition and the joint family status was disrupted and the properties were also divided between the two brothers and they were coming in separate possession on the basis of partition. The plaintiffs are not at all entitled to a partition as there was a partition by metes and bounds.

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28. Besides documentary evidence regarding separate entries in Khatiyan also shows that there was previous partition amongst co-sharers and accordingly they came in possession over that piece of land and therefore previous partition has been proved and there is no need to any partition of the properties described in schedules, as they have already partitioned.

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29. So the documentary evidence adduced by the plaintiffs also not support the case of the plaintiffs. I find it does not speak suit property are still joint rather in the remark column separate possession of the parties have been shown. The separate rent receipts of pradhani also indicate that rent of the suit properties are being not paid jointly by the parties. From perused of these documents, I find that it clearly manifests regarding the partition of the land between ancestor of plaintiff and defendant. These documents completely falsify the plea that no partition had even taken place with regard of suit properties.

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30. After considering the aforesaid document, it is my definite view that the partitioned had already made between both the parties. It will be against natural justice as well as establishing norms that no partition should reopen for the properties which had or have already been partitioned long back through a family arrangement and parties have acted upon that family arrangement. In the present suit, the properties are already partitioned long back in the year 1978

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and both the parties are continuing separate possession as their specific share allotted by family arrangement long back in 1978. As such these three issues are determined with conclusion that suit property i.e. properties detailed in Schedule A & B of the plaint are separate possession of the plaintiff and defendants. Hence, she has got no unity of right, title and possession with respect to the suit property.”

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So far as the learned 1^st Appellate Court is concerned, two points, point no. (A) and (B) were recorded as the points for determination depending upon the arguments raised by the parties. The finding in connection with Exhibit–A has been recorded in paragraph 26 to 28, while deciding the points for determination are quoted as under:

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“14. ………………………..

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Whether the suit property has been partitioned between the parties to the suit by Panchnama Ext.A?

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26. The defendant/appellant in order to show previous partition, put reliance of the panchnama dt. 28.05.1978 exhibited as Ext.A. From perusal of the said document it appears that the same has been written on a plane paper on which some signatures and thumb impressions are available. As per the said document, on 24.05.1978 a panchayati was convened in the house of Nuneshwari Devi for partition of the ancestral property between both the sons of Nuneshwari Devi namely: Bibhuti Mandal and Laxman Mandal. In the said panchayati, both the brothers were given half portion each in Mauza Kaknia in J.B No. 30. Bibhuti Mandal was given the house standing over plot No. 474 area 4 decimal and out of four decimals of land in plot No. 475, one decimal in backside was given to him and remaining 2-3 Decimal in road side is given to Laxman Mandal the constructing his house, mother Nuneshwari Devi was given 8 Katha land for her maintenance and after her death the said land will also be partitioned between both the brothers.

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27. The recitals of the document in question goes to show that the document is not a document of partition. It only made an amicable arrangement between the parties for their

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convenience. The document does not contain the plot No. and the Area of the land which had been allotted to both the parties and their mother. Though the document says that after the death of the mother both the brothers could make partition of the land possessed by her but how much land and in which portion the brothers will get has not been mentioned. In such position it is clear that the document is not a document of memorandum of partition. It seems that the Ld. Lower Court have wrongly misinterpreting the document as a document of partition had passed the impugned judgment.

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28. In above view of the matter it becomes clear that the suit property has not been partitioned between the parties to the suit by metes and bounds by panchnama Ext.A. The above point of consideration is accordingly decided.

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Point(B) Whether the impugned judgment is in accordance with law or it needs any interference by any court.

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As has been discussed under Point-A, the learned lower Court by treating the Panchnama Ext.A as document of partition had came to the conclusion that the parties to the suit had partitioned the suit property by metes and bounds. However as has been discussed on the point No. A. by Panchnama Ext.A. the suit property was not partitioned by metes and bounds between the parties rather by the same document some amicable settlement for possession of land was done. As such the suit property still joint and each of the parties are entitled for half share of the same.”

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The specific case of the defendant to show previous partition was reference to Panchnama dated 28.05.1978, which was Exhibited as Exhibit–A and the learned 1^st Appellate Court recorded specific features of the said document in paragraph-26 of the impugned judgment and in paragraph-27 recorded that the said document cannot be said to be a document of partition as it made only amicable settlement between the parties for their convenience and

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the reason for recording such finding was that it was not clear as to which portion was allocated to one or the other brothers and their mother. It was also held that the said document cannot be said to a document of memorandum of partition.

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Upon perusal of Exhibit-A, this Court finds, it is dated 28.05.1978 and the same does not record any previous partition, rather it refers to the partition done on the same date, i.e. 24.05.1978. Although Exhibit-A talks about allocation to Nuneshwari Devi (the mother) and her two sons, but it does not earmark the portion allocated to each one of them. This Court also finds that the said document cannot be said to be a document of partition by metes and bounds.

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This Court finds that the learned 1^st Appellate Court has rightly recorded that the said document, exhibit- A, is not the document of memorandum of partition and the suit property was not partitioned by metes and bounds between the parties rather by the same document some amicable settlement for possession of land was done. The learned court rightly held that the suit property was still joint and each of the parties were entitled for half share of the same as the mother had admittedly expired.

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25. This is over and above the fact that exhibit-A certainly does not refer to any previous partition but is claimed to be a document of partition which would be inadmissible in evidence being unregistered. This aspect of the matter is squarely covered by the

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Judgment relied upon by the respondent in the case reported in 2002 AIR – Jhar. H.C.R. 1108 (supra).

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In the judgment passed by Hon’ble Supreme Court in the case of

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Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors. reported in 2020(3) JBCJ 455, it has been clearly held by referring to the earlier judgments that in a case of family arrangement, the property is required to be equitably divided amongst various contenders so as to achieve an equal distribution of wealth and it has also referred to the essential contours of a family settlement, which is to be in a concretized form and the matter may be reduced in writing and such a settlement should be bona fide and to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between various members. The Judgment also made a distinction between a document containing the terms and recitals of a family arrangement made under the document and mere memorandum prepared after the family arrangement has also been made, either for the purpose of the record or for information to the court for making necessary mutation. It has been held that even if the party for the settlement is entitled and it relinquishes its claim in favour of one person or other, then also it can be upheld. However, the document by itself partitioning the property requires registration. 27. In view of the aforesaid findings regarding Exhibit-A, the same cannot be said to be a partition through family arrangement having any binding force between the parties and no reliance can be placed

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on Exhibit-A to hold that there was previous partition between the parties to the suit. The findings recorded by the learned 1^st appellate court with regards to the contents, imports and legal implications with respect to exhibit- A, on the basis of which the defendants claimed previous partition, does not suffer from any perversity.

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Thus, it is held that the learned 1^st Appellate Court has not committed any perversity and has not misconstrued the Ext. A while coming to its findings that there has been no partition by Panchnama, exhibit- A and 1^st Appellate Court has not committed any perversity in rejecting the plea of previous partition.

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In view of the aforesaid findings both the substantial questions of law are decided against the appellants and in favour of the respondent.

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This appeal is accordingly dismissed.

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The pending Interlocutory Applications, if any, are dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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R.Kumar/Binit Uploaded on 29.10.2025

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Laxman Mandal v. Gauri Devi Alias Bina Devi

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Laxman Mandal v. Gauri Devi Alias Bina Devi

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