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Shanker Prosad Jha and ors. Vs. Babu Lal Jha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal541,28Ind.Cas.241
AppellantShanker Prosad Jha and ors.
RespondentBabu Lal Jha and ors.
Excerpt:
sonthal parganas regulation (iii of 1872), sections 14, 25a - policy of regulation--record of rights--conclusive proof--civil court, jurisdiction of, to contest entries--limitation--limitation act (ix of 1908), section 29, scope of--minor, position of, under the regulation. - .....to some debts alleged to be due from the family.3. the learned subordinate bulge has held that the suit for properties nos. 2, 5, 8 is barred by the provisions of regulation 111 of 1872; he has decreed partition of the other properties and dismissed the claim for accounts he has also made the plaintiffs liable to pay 1/3rd share in certain debts. it is contended in appeal before us-(1) that the defendants, who plead the regulation in bar of the suit, have not proved that the notices required by the regulation were duly served and cannot, therefore, invoke the aid of the regulation;(2) that the notices required by the regulation could not, even if served, affect the minors win could not in law be considered as cognizant of any proceedings taken;(3) that the plaintiffs were minors when the.....
Judgment:

1. This is a partition suit brought by the plaintiffs against their uncles, defendants Nos. 1 and 2, and their descendants, who are defendants Nos. 3-10.

2. Joyram Dutt, the grandfather, died in 1295 leaving three; sons Babulal, Surji and Dinabsindhu. These throe brothers remained joint up to about 1302, when they separated in mess, and the income of the family properties which remained joint used to be divided in three equal shares. In this state of things Surji died about 1308 leaving four sons, who are the plaintiff. Of those, plaintiffs Nos. 1 and 2 have attained majority and the other plaintiffs are minors. 80 far the facts may be taken as established. The plaintiffs state that on the death of their father the family properties remained in charge of their uncles, defendants Nos. 1 and 2, who used to pay them small amounts for the bare necessities of life and were, therefore, liable to render accounts for he period subsequent to the death of their father. Marring the question of accountability which he denies, defendant No. 2, more or less supports the case of the plaintiffs. Defendants Nos. 1, 3 and 4 really oppose the suit. They say that property No. 2 being the zemindar interest in 5 annas 4 pies thereof, was acquired by defendant No. 1 with his own money in the name of his father and the nokarari of 10 annas 8 pies in his own name; that he has been recorded in the Settlement Records as the proprietor and mokararidar and the suit is barred by limitation under Regulation ill of 1872 in respect of this property and properties Nos. 5 and 8. They say that defendant No. 1 had no objection to divide property No. 2 at the time of the partition, bid the father of the plaintiff and defendant No., 2 gave up their shares and took the whole of the properly No. 7 instead. They repudiate their accountability and claim contribution to some debts alleged to be due from the family.

3. The learned Subordinate bulge has held that the suit for properties Nos. 2, 5, 8 is barred by the provisions of Regulation 111 of 1872; he has decreed partition of the other properties and dismissed the claim for accounts he has also made the plaintiffs liable to pay 1/3rd share in certain debts. It is contended in appeal before us-

(1) That the defendants, who plead the Regulation in bar of the suit, have not proved that the notices required by the Regulation were duly served and cannot, therefore, invoke the aid of the Regulation;

(2) that the notices required by the Regulation could not, even if served, affect the minors win could not in law be considered as cognizant of any proceedings taken;

(3) that the plaintiffs were minors when the Record of Rights was made and the defendant No. 1 who was thou the karta of the family was recorded as such harta, and the Regulation does not bar the present suit;

(4) that the orchard in Mouza Rauga which was added at the instance of the defendants as joint property should have been included in the decree;

(5) that if the defendants' case as to the properties Nos. 2, 5, 8 was allowed, the share of the plaintiffs in property No. 7 should have been 1/2 instead of 1/3rd;

(6) that the defendants should have been held to be accountable since the death of the plaintiffs father;

(7) that the debts incurred after partition should not have been thrown upon the plaintiffs;

(8) that the expenses of the sradh should not have been divided equally in the absence of a contract to bear the same in equal shares.

4. The firrst three Questions raised by the appellants would have been of great force if it were not for the peculiar provisions of Regulation III of 1872 the policy of this Regulation was to have a complete Record of Rights and interests in land in the Sonthal Parganas and to exclude the jurisdiction of Civil Courts except in certain matters. Section o lays down that from, the date on which the commencement of a Settlement is notified to the date on which the Settlement is notified as completed, no suit will he in the Civil Court in regard to any land or any interest in or arising out of lauds, etc. Section If lays down that a general notice would be given to the people of the village so that all persons interested may bring forward their claims and the Settlement Officer would inquire into, settle and record all rights in or claims to the lauds of a village even if no one appears to urge his claim. Section 11 is that except as provided in Section 25A no suit shall he in any Civil Court regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts under these rules regarding the interests and rights above mentioned shall have the force of a decree of Court. Section 25 lays down that after the expiry of six months from the date of the publication of the Record of Rights of any village such record shall he conclusive proof of the rights and customs recorded except rights mentioned in Section 25A etc., and then Section 25A says, where only the rights of zeuuuduns and other proprietors as between themselves are concerned, a suit may, unless it is hared by Section 13 of the Civil Procedure Code, be brought in a Court established under the Bengal Civil Courts Act of 1887 to contest the record within three years of the date of the publication of the Record of Rights. But no such suit shall be brought in any Court after the expiration of three years from that date. This being the nature of the restrictions on the jurisdiction of the ordinary Civil Court, this suit so Par as it is regarding the proprietary rights in property No. 2 is barred by limitation. It is true that the general Limitation Act is applicable to the Sonthal Parganas but Section 29, Act IX of 1908 saves all provisions of local laws as to limitation and does not, therefore, affect the three years' rule under Section 25A Regulation III of 1872. Tins Regulation does not make any exception in four of minors and the minority provisions of the general limitation Act have re Terence to the periods of limitation prescribed in that Act. The Settlement Officer is supposed to investigate all sorts of claims whether preferred to him or not, although it seems to be against all principles of justice and equity that the claims of minors and others who are supposed not to know their interests should be finally settled in their absence and although it is impossible for any man, however intelligent and efficient he may be to know of all kinds of claims that may be made by all kinds of men known or unknown, sane or insane, major or minor, the Settlement Officer is required to investigate, decide and record his decisions on such claims and the record is conclusive evidence, There is the law however, and we have to administer it as we find it and leave it to the party aggrieved to bring his grievances to the notice of the local Government, which is the only authority that can mend matters.

5. It has been argued that the record may at best operate as a decree of a Civil Court under Section 11 of the Regulation and, therefore, minors who are not parties cannot he bound, The analogy however must be Subject to the restrictions under the Regulation, and we have seen that the Regulation makes no exception in favour of minors and the notice is to the people of the village irrespective of age or intelligence. As the law makes the Record of Rights conclusive proof of the rights and interests therein recorded and the record is in evidence in favour of defendant No. 1, he could hardly he called upon to prove the service of the required notices. In this view of the case the first three grounds fail the claim for properties Nos. 5 and 6 also fails on the same grounds.

(4). The defendants pleaded that the orchard in Monza Rouga had not been included in the claim and the suit was, therefore, defective and liable to dismissal. This property was accordingly added to the plaint and has been left out of the decree by mistake. This property will be considered as one of the properties to be divided into three equal parts, one part to be allotted to the plaintiffs.

(5) As tilts property No. 7 stands in the names of Surji and Dinabandhu and the puttah was given to them and as the contending defendants admit that they have no share in the same, it may be allotted half to the plaintiffs and half to Dinahandhu.

(6) Admittedly the parties had been dividing the profits of the family properties up to 1908. We do not think it is made out that the defendants did not go on making over plaintiffs' share. The plaintiffs say that they did not get the whole of the income in their shave. We do not think that this is established.

(7) Upon the admitted facts the parties are not the members of a joint family and the defendants are found not to have been managers on behalf of the plaintiffs. If they paid any joint debts they may sue for contribution. That is a separate cause of action, and cannot be decreed as a counter-claim in a suit which is one for partition by metes and bounds of lauds held in common but not as joint family property.

(8) As regards the expenses of the sradh there is no sufficient evidence of a contract by the plain tills to pay one-third share. They paid what they could and in the absence of such a contract, the defendants cannot force them to pay an equal share with themselves.

6. Taking into consideration the circumstances of the case mid the success and failure of their respective claims, we think that each party should bear his own costs in both Courts.

7. The decree of the Court below is accordingly modified.


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