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Sheo Bandhan Singh and ors. Vs. Sahdeo Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1930All130; 122Ind.Cas.895
AppellantSheo Bandhan Singh and ors.
RespondentSahdeo Prasad Singh
Excerpt:
- - we consider therefore that these second appeals must fail so far as they relate to the deed of relinquishment......amount in equal shares. but it appears to us that in the absence of anything to the contrary the natural presumption is that this decree was passed on a loan from the joint family and accordingly the decretal amount ought to have been divided in the shares of the joint family and that after the partition the plaintiffs should receive a two-third share. accordingly we allow the appeals to this extent that we restore the decree of the court of first instance of rs. 549-0-8 to the plaintiffs with proportionate costs throughout. the defendants will get proportionate costs of the appeals in this court.
Judgment:

1. These second appeals are brought by the plaintiffs against decree of the lower appellate Court. The plaintiffs brought three suits on the allegation that the plaintiffs belonged to two branches of the family of Ajaib Singh and the defendant Pudai Singh now represented by his son Sahadeo Singh belonged to the third branch. The plaintiffs alleged that this family was joint up to the year 1322 F when there was a partition. The plaintiffs alleged that some property remained undivided in that partition, and accordingly they sued for partition of that undivided property. Further the plaintiffs alleged that some property allotted to them in the partition was in the possession of the defendant and some of these suits are brought on that basis. The defence mainly was that in 1308 F there had been a partition, and that the partition set up by the plaintiffs in 1322 F was untrue. On behalf of the plaintiffs certain chithas were produced which gave details of property allotted to the plaintiffs in the partition of 1322 F. The defence, on the other hand, produced a deed of relinquishment of the date of that partition which showed that certain items of property allotted in the chithas of the plaintiffs to the plaintiffs were in fact relinquished by the plaintiffs in favour of the defendant. One of the grounds of appeal before us is that this deed of relinquishment should not have been admitted into evidence, because it was unregistered, and that its admission was barred by Section 49, Registration Act. It is quite true that section prevents the use of the deed of relinquishment for any purpose affecting immovable property or being evidence of any transaction affecting immovable property. But we consider that the document was correctly admitted under Section 11, Evidence Act, because it is inconsistent with the facts in issue, i.e., with the chithas relied on by the plaintiff.

2. The lower appellate Court has found as a fact that the chithas produced by the plaintiffs are forgeries and that there was not a partition in 1322 F such as is evidenced by the chithas. This is a finding of fact and is not open to challenge is second appeal. We consider therefore that these second appeals must fail so far as they relate to the deed of relinquishment. The Court of first instance had dealt with one item of property as follows. In para. 7 of the plaint it was alleged that plaintiff 1 and defendant 1 obtained a decree for Rs. 823-9-0 in suit No. 101 of 1911 on 2nd June 1911, and that the defendant 1 alone realized that amount on 17th April 1921. In the written statement it was admitted that the decree was passed and the amount was realized although the defendant stated that he did not know on what date. No further evidence on the point appears to have been tendered and the case put forward by the defence that there had been a transfer of two bonds by defendant 1 to plaintiff 1 in satisfaction of his share of this decretal amount was not proved Accordingly the Court of first instance granted a decree in favour of the plaintiff for Rs. 549-0-8 with proportionate costs, that is a share of two-thirds in favour of the plaintiffs. The lower appellate Court reversed this finding to the extent of decreeing only one half to the plaintiffs. The grounds for this decision appear to be the fact that the decree was in the names of two persons plaintiff 1 and defendant 1, and accordingly the lower appellate Court thought that these persons were entitled to share the decretal amount in equal shares. But it appears to us that in the absence of anything to the contrary the natural presumption is that this decree was passed on a loan from the joint family and accordingly the decretal amount ought to have been divided in the shares of the joint family and that after the partition the plaintiffs should receive a two-third share. Accordingly we allow the appeals to this extent that we restore the decree of the Court of first instance of Rs. 549-0-8 to the plaintiffs with proportionate costs throughout. The defendants will get proportionate costs of the appeals in this Court.


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