1. This first appeal against the judgment dated 16-12-1948 of Sri K. K. Bose, and Addl. Subordinate Judge of Cuttack, arises out of a suit for partition-defendants 1 to 4 being the appellants.
It will be necessary to reproduce the genealogy herein below in order to appreciate the respective cases of different sets of parties in the suit for partition;
| | | | |
Nandakishore Ganeswar Nabakishore Shymasundar Purna chandra
| | =Manikya | |
| Priyanath Dibya Srinihas Mukta Dibya
| (Plff.) | (D.5) (D.6)
--------------------------------------------------- Ambika Devi
| | | |
Balakrishna (D.1) Gadadhar (D.2) Adikanda (D.3) Prasanta (D.4)
2. Madhab had 5 sons, Nandakishore, Ganeswar, Nabakishore, Shyamsundar and Purnachandra. Defendants 1 to 4 are the sons of Nandakishore. Plaintiff is the son of Gancswar. Defendant 23 is the daughter of Nabakishore who died without a sun. Defendant 5 is the son of Shyamasundar. Defendant 6 is the widow of Purnachandra and defendant 7 is his daughter. Purnachandra died near about the year 1929-30.
According to the plaintiff's version Purnachandra died in a state of jointness with the other 4 brothers. 7 or 8 years after the death of Purnachandra, the 4 brothers separated in mess and there was severance of interest as they began to use the usufruct of the properties in four equal shares and there was no partition by metes and bounds. A few months after the separation amongst the four brothers, the plaintiff's father Ganeswar and Nanakishore reunited and enjoyed eight annas interest in the properties scheduled in the plaint. Nabakishore died in the year 1938-39 while living Joint with Ganeshwer and the plaintiff. On the death of Nabakishore his interest passed on to Ganeswar and the plaintiff by way of survivorship as Nabakishore had no male issue.
Nandakishore, Ganeswar and Shyamasundar, the three other brothers, died in the year 1944. The plaintiff therefore claims partition of his eight annas interest in the properties and alleges that defendant 5 Srinibas is entitled to four annas and defendants 1 to 4 are entitled to the balance four annas. The parties having failed to amicably partition the properties in spite of repeated demands, the plaintiff has brought the present suit for partition.
3. Defendants 5 and 23 agree with the plaintiff's version that in fact there was separation nearly 7 years after the death of Purnachandra as amongst the four brothers; but nevertheless they deny the factum of reunion between Ganeswar and Nabakishore as alleged by the plaintiff. According to them, therefore, each branch is entitled to four annas interest in the property and defendants 6 and 7 have none as Purnachandra died in a state of jointness with the other four brothers.
Defendants 1 to 4, the present appellants, assert that there was no separation at all as alleged by the plaintiff, defendants 5 and 23. They therefore contested the position of reunion alleged by the plaintiff as the question would not arise.
According to the appellants, the family remained joint both in property and in status even till the institution of the suit and all the five brothers died in a state of jointness. The appellants further asserted at the trial stage that the plaintiff was not entitled to any share on account of his congenital leprosy. This part of the case is not pressed before us. In the first appeal they take up the position that they are entitled to one-third share the plaintiff is entitled to one-third and Srinibas (defendant 5) is entitled to the balance one-third.
4. The main contesting defendant-respondent before us is defendant 6 Purnachandra's widow. Her case is that in fact there was separation in status in the family amongst the five brothers during the life time of Purnachandra and, as such, each branch including defendant No. 6 has a fifth share.
5. The trial Court, after a thorough discussion of the oral evidence adduced on behalf of the plaintiff and the documents filed in Court, has come to the definite finding that the plaintiff's case that there was separation amongst the four brothers nearly 7 or 8 years after the death of Purnachandra has not been established and further that the plaintiff has not been able to establish his case of reunion.
The trial Court has also found that it is not true as alleged by defendants 1 to 4 that there was never any severance of interest till the institution of the suit. He has accepted the case of defendant 6 that in fact there was separation in status during the lifetime of Purnachandra and on, the basis of this finding he has allowed a decree in favour of the plaintiff in respect of his one-fifth share and has further found that each other branch including defendant 6 is entitled to one-fifth share.
Neither the plaintiff nor defendant 5 nor defendant 23 has preferred an appeal or a cross-appeal. Each one of them is therefore disentitled to attack the decree. The finding 'therefore that it has not been established that 7 or 8 years after the death of Purnachandra the four surviving brothers separated' has become final and further 'that the plaintiff has not been able to establish the allegation of reunion' has equally been final.
6. The only question to be determined in this appeal is whether as a matter of fact the family continued joint even till the institution of the suit as alleged by the appellants is to be accepted or that there was separation in status amongst the five brothers even, during the lifetime of Purnachandra prior to the year 1929.
One circumstance that has rightly weighed with the learned Court below transpires from Ext. D-l (Order of 30-6-30 of the L. R. Officer regarding cancellation of the name of Purnachandra Praharaj in respect of T. No. 4753). In 1929-30 immediately after the death of Purnachandra, defendant 6 asserted her right to be recorded in the place of her husband Purnachandra as he separated from the other brothers. Indeed the order winch was passed on 30-6-30 rejected her claim as defendant 6 and her witnesses were absent on the date of the order.
But nevertheless the significant fact that is outstanding is that immediately after the death of her husband she had asserted her claim to be recorded in the place of her husband. It is to be mentioned in this connexion that this assertion of her lights was in fact recognised by the land registration authorities and her name was recorded in the place of her deceased husband Purnachandra in the year 1943 after a keen contest by the other cosharers at the enquiry stage and also at the appellate stage-Vide Exs. B-l/6 (judgment of the L. R. Deputy Collector) and B-2/6 (judgment of the appellateCourt).
The learned trial Court has also found that during last settlement operations which terminated in the year 1929 and presumably must have started in 1026 or so, there were litigations amongst the five brothers. For this finding he relies upon the evidence of P. Ws. 2, 5 and 6. From the pleadings set out above, it is clear that the plaintiff, defendants 1 to 4 and defendant 6 have each conflicting interest as against the other. Amongst the three it seems to be a triangular fight.
In our opinion, there is nothing irregular in the trial Court having relied upon some statement transpiring in the evidence of the witnesses for the plaintiff to come to the finding that there were litigations even during the settlement operations amongst the five brothers. P. W. 6 goes on further to say that during the pendency of the litigations the brothers were messing separately. This is another important piece of evidence of severance of interest.
7. We will next refer to Ext, H-6 which is a report submitted on 19-12-43 by S. Mohanty, Sub-Deputy Collector, regarding disposal of the paddy stock of the present parties. All the three brothers, Nandakishore, Ganeswar and Shyama Sundar were living then. The paddy in stock was in the granary for nearly 23 years and the sale proceeds of the paddy amounting to Rs. 4250 was divided amongst the representatives of the five shares equally each getting a sum of Rs. 850.
It also transpires from the evidence of P. W. 5 that in fact the sale proceeds of the paddy were so distributed in five equal shares, each branch including defendant 6 getting Rs. 850. The fact of defendant 6 getting exactly an equal share with the other four cosharers is a strong piece of evidence to speak about her rights on the basis that her husband died in a state of separation, otherwise the other four cosharers would not acquiesce in the position of giving exactly an equal share to defendant 6.
8. Mr. Dasgupta, appearing on behalf of defendant 6 before us, has also placed reliance on Ext. 1/1-6 which is a certified copy of a suit register showing that Ganeswar had obtained a decree on 31-3-30 for recovery of money due on two handnotes of the year 1926. Ganeswar was not the Karta of the family then as Nandakishore was alive.
The separate transactions ever since the year 1926 of Ganeswar are items of evidence to be taken into consideration where the question arises as to whether the family had disrupted during the time or not, There is yet another very important piece of document throwing a good deal of light over the disputed point.
This is Ext. A-6. Indeed it is an unregistered document and it docs not bear any date; but nevertheless it purports to have been signed by all the five brothers Nandkishore, Nabakishore Shyamsundar, Purnachandra and Ganeswar, Besides the signatures of these five brothers as parties to the document, it purports to contain also the signatures of three other persons--Govinda Acharya, Udaya Nath Das and Narasingha Bramha, who are alleged to be the Bhadraloks to participate in the matter of settlement of disputes amongst the five brothers.
If it is found to be a genuine transaction, the fact that it does not bear any date will not diminish its evidentiary value as it contains the signature of Purnachandra and must therefore be deemed as having been executed during his lifetime.
Its genuineness was challenged before the trial Court on the ground of late filing of the document. But the trial Court has given very cogent reasons not to rely upon this feature of late filing and has given us the benefit of the finding that it is a genuine document particularly relying upon the evidence of D. W. 1 for defendant 23 who admitted the signatures of Nandakishore and Ganeswar on the document.
The genuineness of the document is not seriously challenged before us and we do not see any reason to differ from the finding of the trial Court. It would be pertinent to give a few of the recitals of the document. It recites 'there having been some differences amongst us we have agreed in the presence of the three bhadraloks to their decision that whenever we will separate we will partition the property according to the decision contained in the paragraphs below'.
Paragraph 3 of the document is important where it is recited that such of the other cosharers has contributed equally towards the Jyesthans of six pies interest in favour of the eldest brother Nandakishore. In para 5 the brothers agree that from today whatever property will be purchased it will stand in the name of all the five brothers and will be liable to partition according to the share of each cosharer.
The recitals clearly indicate that the five brothers since the date of the document have unequivocally expressed their intention to separate and to hold property in, defined shares, that is, l/5th share of each cosharer.
9. Mr. B. Mohapatra, appearing on behalf of the appellants has however taken up a point that the document has got to be ignored as it is inadmissible in evidence on account of non-registration -- being hit by the mischief of Section 17 Registration Act. The contention cannot prevail inasmuch as the document is not one of actual partition of the specific properties amongst the brothers wherein separate allotments were made in favour of each cosharer in which case indeed the document would be inadmissible for the purpose of proving actual partition.
But the document being only an unequivocal expression of the parties of their intention to separate immediately is admissible for the purpose of showing such expression of intention. As an authority for the proposition, we may refer to a Bench decision of the Patna High Court in 'Mt. Besar Kuar v. Ramhit Singh', AIR 1941 Pat 167 (A).
There the document which effected a partition was inadmissible for the parties to the partition; but Harries C. J. was definitely of the view that the document however was clearly admissible to establish, the status of the party to the document or to establish separation in the family and to rebut any case that the party died in a state of jointness. Manohar Lall J. agreed to this view.
Their Lordships had relied upon a decision of the Madras High Court delivered by Beasley C. J. and Curgenvan J. in -- 'Subbarao v. Mahalkshmamma', AIR 1930 Mad 883 (B). There the document was described as 'share list' and was headed as 'particulars of the immoveable properties which fall' to the share of a member in the divisions of family properties. The document then enumerated the several properties falling to the share of the member.
It was signed by both the members between whom the properties were divided and was duly attested but not registered. It was held by Beasley C. J. that the document could not be said to be merely the minutes of a previous oral agreement to divide; it was a deed of partition and hit by Section 17(1)(b), Registration Act.
But on review of quite a number of decisions, their Lordships were also of the opinion that although the document was inadmissible to prove partition it could be used in evidence as evidence of a division in status.
The same view also was taken in a Bench decision of the Bombay High Court in -- 'Narmadabai v. Kupsing', AIR 1938 Bom 69 (C). We would follow the same view particularly for the reason that it is in accord with the decision, of their Lordships of the Privy Council in the case of --'Rajangam Ayyar v. Rajangam Ayyar', AIR 1922 PC. 266 (D), even though their Lordships of the Judicial Committee do not categorically observe is above.
10. In conclusion, therefore, we find that there was separation in status amongst the five brothers during the lifetime of Purnachandra, and, as such, each branch is entitled to l/5th share in the immoveable properties described in the schedule to l/5th, defendants 1 to 4 are entitled to l/5th, defendant 23 is entitled to l/5th, defendant 5 is entitled to l/5th and defendant 6 is entitled to l/5th. The appeal therefore is dismissed with costs, to the contesting defendant 6, Mukta Dibya, who is respondent 3 in this Court.
11. I agree.