The Patna High Court dismissed the appeal in a partition suit. The court held that the First Appellate Court reasonably found the 1946 property acquisition to be out of joint family funds and refused to interfere with findings on family separation under Section 100 CPC.
Appeal dismissed. No relief granted to appellants.
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 JUDICATURE AT PATNA Second Appeal No.28 of 2008
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Both sons of Late Kapildeo Choudhary,
All resident of village-Bhalun,
All sons of Ram Kripal Choudhary, resident of village- Bhalua Mukund, P.S. Jiradae, Distt. Siwan
Defendants….Respondents.... .... Appellant/s Versus
Daughter‟s of Ram Eqbal Choudhary
Plaintiffs…Appellants…Respondnets.
All resident of Village-Bhalua, P.S.-Ziradei, District-Siwan.
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All resident of Village Sadar Bhalua, P.O. Bhaisarkhal, P.S. Jiradei, Siwan.
All resident of village Bhalua, P.S. Jiradei, District-Siwan.
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Amarjeet Yadav, resident of village + P.O.-Jiyay, P.S. Mufassil Siwan, District-Siwan
All resident of village Bhalua, P.S. Jiradei, District-Siwan
All sons of Kamta Pathak
All resident of village Bhalua, P.S. Jiradei, District-Siwan
Defendant .... Respondent .... Respondents
====================================================== Appearance :
For the Appellant/s : Dr. Umashankar Prasad, Sr. Advocate Mr. Kamala Kant Tiwary, Advocate
For the Respondent/s :
====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
28 08-02-2013 Heard learned Senior Counsel for the appellants.
Court of Sub-ordinate Judge VIth , Siwan are the appellants in the present appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) which has been placed for
hearing under Order 41 Rule 11 of the Code.
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respondents herein and confirmed the rest of the judgment and decree dated 09.09.1992 passed by learned Sub-Judge, Siwan in Title Suit No. 103/1986 whereby the suit filed by the plaintiffs / respondents was decreed in part.
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meeting family expenses and certain properties were acquired from such surplus joint family fund in the name of brother-in-law of Khooblal Choudhary and Dwarika Choudhary. It was pleaded that after the death of Bedeshi Choudhary and Sheo Govind Choudhary, Khooblal Choudhary became the Karta of joint family of both the brothers and he also acquired property from the nucleus of the joint family and further that members of family of both brothers having came into possession of property so acquired by Khooblal as Karta. The plaintiffs pleaded that for the sake of convenience a separation had taken place about twenty years back but there was no partition among the parties by metes and bounds.
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further pleaded that Zar Pesagi lease (Zar Pesagi lease is an usufructuary mortgage in ordinary circumstance) of 1909 and 1917 was standing the name of Ajaib Choudhary which was divided among the two brothers Bedeshi Choudhary and Sheo Govind Choudhary who paid Rs. 525/- each against total Zar Pesagi amount of Rs. 1050/-. The appellants pleaded in their written statement that Khooblal Choudhary was appointed as Chowkidar after the death of Bedeshi Choudhary and he had earning out of it. The defendants further pleaded that sons of Bedeshi including Khooblal Choudhary used to keep cows and do business of Mahajani and sale and purchase of animals and made good savings out of it. They pleaded that father of Khooblal Choudhary had given loan to some people which earned interest also and accordingly a sum of Rs. 1050/- for Zar Pesagi of 1909 and 1917 was to be paid by the loanees. As the loanees could not pay back the amount, they made Zar Pesagi in favour of the ancestors of the defendants. It was also pleaded on 18.07.1929, they made Zar Pesagi with respect to 6 Bigha 13 Katha and 6 Dhurs to Bedeshi Choudhary. Bedeshi Choudhary had given a sum of Rs. 42 to them and for a sum for Rs. 80 Zar Pesagi amount was made and Bedeshi Choudhary had to get the remaining amount. It was stated that one Basgit Kamkar, who was
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the owner of 1/3 share of Khata No. 17 was in the urgent need of money Khooblal was ready to give more in comparison to other and executed a sale deed in 1929 with respect to some land out of Zar Pesagi land of Khata No. 17 measuring 3 Bigha 16 Katha 2 Dhurs of cultivable land and 14 ½ Dhurs homestead land for a sum of Rs. 2500/- in favour of father of Khooblal Choudhary. The details of other properties which according to the defendants were acquired through themselves by the defendants were also mentioned in their written statement so as to contend that this property could not be subject matter of the partition as claimed by the plaintiffs. On the basis of the rival pleadings learned Trial Court framed altogether eight issues including issue No. IV, V and VII which reads thus:-
“IV) Is there any Unity of title and Unity of possession
between the parties with respect to the suit land?
V) Whether separation took place in the year 1925 or not? VII) Whether the land of Schedule III is of joint acquisition or in the state of separate acquisition?”
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dealing with the issue No. VII i.e., the properties given in Schedule 2 and 3 being self-acquired properties of the defendants including defendants No. 1 to 4, who are appellants herein, learned Trial Court came to specific finding that the property acquired by parties after 1960 were their self-acquired property and they could not claim share in those properties. Learned Trial Court in its judgment accordingly held that the plaintiffs could not claim over the land, the description of which is given in Schedule 2 and Schedule 3 of the plaint.
“So far the sale deed of the year 1946 in the name of Khoob Lal (Ext B/10) is concerned, there are the out come of
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joint family fund it has been admitted by the contesting defendants that there was Jarpeshgi deed of 1909 and 1917 in the name of Ajayab Chaudhry, the common ancestor D.W. 29 in para-9 and 10 has admitted in his evidence that the Jarpeshgi deed of 1929 Rs. 2929 was based on the Jarpeshgi deed of 1909 and 1917 and the land purchased in the name of Khooblal in the year (B/10) 1946 is based on the Jarpeshgi deed of 1929. The property given in the Jarpeshgi deed of 1929 and in the sale deed of 1946 are the same. The recitals of the sale deed also show that the Jarpeshgi amount of 1929 was settled since the Jarpeshgi deed of 1909, 1917 was in the name of common ancestor and it was acquired by joint family fund, it will be presumed that the land acquired by Khooblal in the year 1946 (2715/1946) from the Basgit Kumar (Mortgagers family) is also an out come from the fund of joint family. The defendant No. 1 to 4 have submitted that the word “Amarat” is used in the sale deed of 1946 (Ext. B/10) and no amount was set off in this deed, but that Zar Pesagi deeds have not been produced by the defendant No. 1 to 4 inspite of the several demand. This will lead to this inference that if the original Zar Pesagi deed would have been filed then the same would have gone against the defence version.”
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distinguish the nature of two transactions. He has further submitted that finding of learned First Appellate Court is contradictory also while dealing with the year when the separation in the family is said to have taken place inasmuch as learned Appellate Court has held the year of separation to be 1966 whereas the final judgment has been passed on the premise that the separation took place in the year 1960.
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(Exhibit-D/10). This would not mean that learned First Appellate Court came to a different finding or the judgment is passed taking into account 1960 as year of separation. So far as the finding of the First Appellate Court that the purchase of land in the year 1946 through Exhibit B/10 was out of joint family property, on going through paragraph 25 of the judgment under appeal, I find that the First Appellate Court has taken into account and considered the evidence and material on record and such finding need not be interfered with in exercise of power under Section 100 of the Code of Civil Procedure. The appeal is, accordingly, dismissed.
(Chakradhari Sharan Singh, J.)
Saif/-
2 issues framed by the court
Whether the sale deed of 1946 regarding the land purchased by Khooblal Choudhary was acquired out of joint family fund or was self-acquired.
Whether the First Appellate Court's findings regarding the year of family separation and the nature of properties in Schedule 2 are correct and require interference under Section 100 CPC.
2 provisions across 1 enactments
Lallan Choudhary
Sawaro Devi
Ramesh Kumar Yadav
Har Bansh Kumar Yadav
Ramita Devi
Chandradeo Chaudhary
Chakradhari Sharan Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
