S. Acharya, J.
1. The unsuccessful plaintiff No. 1 in both the courts below has preferred this appeal, Plaintiff No. 2 died during the pendency of the suit.
2. The following genealogical tree will show the relationship of the parties and the other relevant persons:--
| | | | |
Dina- Bhubani Nidhi Sidha Sudam
bandhu | =Sakhi =KJibana =Sakhia
of the suit.)
Admittedly all the five sons of Srinibas, shown above, are dead. Dinabandhu, Bhu-bani, Nidbl and Sidha died before the coming into force of the Hindu Women's Rights to Property Act of 1937. Sudam died in 1948. Subasi and Sakhi are also dead.
The suit property is the homestead property described in the plaint and recorded in Ext, 1,
3. The plaintiffs In the suit have asked for partition of their 4/5th share in the suit property. Their case, in a nutshell, is that prior to 1928 there was severance of the joint family status amongst the sons of Srinibas, and accordingly the widows of Dinabandhu, Nidhl and Sidha had each 1/5th share in the suit property. Jibana, by the registered sale deed Ext, 3 dated 32-1-1943, sold her 1/5th Interest In the suit propetry Sn favour of the plaintiff no. 1. Thereafter Subasi and Sakhi tranaferred their 2/5th interest In the suit property in favour of the plaintiff no. 2 by the registered gift deed Ext, 2 dated 19-4-44. Accordingly with the plaintiffs' own 1/5th share in the suit property, they have 4/5th share in the same. In the Record of Rights Ext. 1, prepared in the Current Settlement finally published in 1928 the names of Subasi and Sakhi stand recorded along with tha plaintiff no. I, Sidha and Sudam, which, according to the plaintiffs, is indicative of the fact that there was severance of the joint family status in that family before that settlement.
4. During the pendency of the suit defendant No. 2 was somehow impleaded, but she in her written statement and deposition in court disclaimed her relationship with the parties and any right to or, interest in the suit property.
5. The case of defendant No. 1, who only contested the suit, is that there was no severance of the joint family status prior to the said settlement of the year 1928, the sons of Srinibas as also Subasi, Sakhl and Jibana were all living together in joint mess and property and the suit property continued to be joint all through. The parties separated in mess and property only In 1944, but the suit homestead property was not partitioned at that time. Since Sudam died in 1948, i.e. after the severance of the joint family in 1944, she (D, 1) has eight annas share in the suit property, and the rest eight annas share belongs to the plaintiffs.
6. Both the courts have held that there was no severance of the joint family amongst the eons of Srinibas In the year 1928 as alleged by the plaintiffs, and so Subasi, Sakhi and Jibana were legally not competent to transfer either by sale or gift any portion of the suit property in favour of the plaintiffs as alleged by the plaintiffs. It is also held that the suit homestead property recorded under Ext, 1 was not partitioned between the parties in the admitted partition of other joint family properties in the year 1944. Mainly on tha above findings the suit property has been directed to be partitioned In two halves--one half going to the appellant and the other half to the defendant No. 1.
7. In this appeal it is contended by Mr. Jena, the learned counsel for the appellant, that the finding of the courts below that there was no severance of the joint family before the settlement of the year 1928 is illegal and incorrect in view of the fact that the names of Subasi and Sakhi appear along with other coparceners in the C.S. record of rights of the year 1928 clearly indicating thereby that there was severance of the jointness of the family before that settlement and the widows had distinct shares in the suit property. In support of his above submission Mr. Jena has cited the observation made In tha unreported common judgment passed in First Appeal No. 124 of 1957 and First Appeal No. 30 of 1960 (Jairam Naik v. Baikuntha Charan Naik) disposed of by this Court on 11-10-1961. In that decision it has been observed that If the names of the widows find place together with the other co-sharers In the record of rights of the current settlement, that gives an indication of separation amongst all the brothers during their lifetime. The reason given for the said observation is that if the husbands of the said widows had died before that settlement in a state of jointness their widows were only maintenance holders and not co-sharers, and hence their names would not have been entered in the Khatians, Having taken that Into consideration their Lordships proceeded to consider several other features of the case appearing in the evidence on record indicating severance of tha joint family status, and on a consideration of all those facts and circumstances they confirmed the finding of the court below on that Issue. From the said judgment It Is quite evident that the finding on that question was not solely based on the above observation but was based on that and various other features all taken together. In the case reported In AIR 19'37 PC 69 Kesho Prasad Singh v. Mt. Bhagjogna Kuer it has been held :
'Government records are evidence of title mainly because they are good evidence of possession. But if contrary to the facts as to possession at the time they were made, they carry little, if any, weight.'
The said observations Indicate that such entries In the record of rights are no doubt evidence of title, but they are not conclusive evidence of that fact, and they cannot have any weight or value if there appear other facts and circumstances on record to contradict that fact or to rebut the presumption arising out of such entries.
In the case of Ganapath Sahu v, Bulli Sahu reported in AIR 1974 Ori 192 it has been observed that If in a settlement record a pre-Act widow is jointly recorded in respect of some lands with other co-sharers, that is consistent only with the theory that she was not a maintenance holder, but had some interest In the property, On taking into consideration tha fsct that tha pre-Act widowg were jointly recorded with other co-sharers and the various other facts and materials appearing on record this Court confirmed the finding of the lower appellate court that the husbands of the widows died in a state of separation. From the tenor of that decision it is quite evident that their Lordships did not decide that question only on the basis of the said joint record but that fact was taken into consideration as a piece of evidence along with the other facts and materials on record to decide that question.
From the decisions cited by Mr. Jena it is quite evident that from such joint record one can presume that such widows were not merely maintenance holders but they had some interest in the property. But such joint record is not conclusive evidence of the fact that the said widows had title to or were co-sharers of the property mentioned In the said record of rights. The above presumption In their favour cannot stand if facts and circumstances on record nullify that presumption.
8. In the present case therefore on the mere fact that the names of Subasi and Sakhi were jointly recorded in Ext. 1 with the co-sharers of the suit property, it cannot be conclusively said that each one of the widows was a co-owner of the suit property having equal right and share in the same like the co-sharers of the property, Both the courts below have enumerated several facts and circumstances which badly counteract the said presumption. The defendant no. 1 in her written statement and in her deposition in court has stated that the names of the said two widows were wrongly and fraudulently recorded in the said record of rights. The plaintiff has not been able to adduce convincing oral or documentary evidence of separation. Besides, plaintiff No. 1, P. Ws. 3 and 5 are the only two witnesses who have stated that the sons of Srinibas were occupying separata rooms in their house and were separately cooking their food. Both the courts below have disbelieved the trustworthiness of P. Ws. 3 and 5 and the veracity of their evidence for good reasons. On a persual of the judgment of both the courts below and the relevant portion of the evidence on record I am satisfied that there is no convincing oral evidence regarding severance of the joint family status and separation of tha song of Srinibas prior to the current settlement operations.
Apart from that fact, there is also no evidence of any overt act suggesting separation. It is further seen that some properties which had been purchased by some other co-sharers of the suit property under Exts. F, G and H were treated by Subasi, Sakhi and Jibana as the joint family properties, as can ba seen from Exts. 2 and 3. That fact runs contrary to the claim of severance of joint status prior to that settlement. Exts. 2 and 3 are silent regarding separation of the co-sharers. Separata possession of tha different co-sharers has not been proved by any documentary evidence whatsoever. The plaintiff has stated that by about the year 1944 there was a partition of all other properties including the agricultural lands of the family between him and Sudam, the husband of defendant No. 1. If really there was severance of the joint status prior to tha current settlement operations in 1928 and the parties were living separately from each other since then, there was no reason why all the properties and agricultural lands belonging to the parties had been kept joint till the year 1944 and wera partitioned only between Sudam and the plaintiff, There is nothing on record to show that Jibana has been given a share in the said partition of 1944 and no convincing reason is ascribed for the same, This is a circumstance to show that there was no separation of the joint status; and Jibana, being a pre-Act widow, was only a maintenance holder. There Is no evidence on record to show that the widows separately were paying ChowkidarJ tax in respect of the homestead land. The plaintiff No. 1 has rather stated that the Chowkidari receipts were separated only in 1944.
Both the courts below have discussed and considered the above and various other features which militate against the claim of severance of the joint status prior to the settlement of the year 1928 as alleged by the plaintiffs. On a perusal of the judgments of both the courts below and certain portions of the evidence on record I am satisfied that the concurrent finding in this respect is based on convincing discussion and consideration of the relevant materials on record, and I do not find any reason to interfere with the said concurrent finding of fact in this second appeal.
9. The impugned judgment is not challenged on any other ground.
10. I do not see any merit in this appeal and it is accordingly dismissed. The parties to bear their own costs of this appeal.