A. F. A. D. No. 135 of 1989. Case: Gauri Shankar Prasad Singh and Ors Vs Baid Nath Prasad Sing. Patna High Court
|Case Number:||A. F. A. D. No. 135 of 1989|
|Party Name:||Gauri Shankar Prasad Singh and Ors Vs Baid Nath Prasad Sing|
|Counsel:||For Appellant: Shashi Shekhar Dwivedi, Sr. Counsel, with R. S. Dwivedi, Shailendra Kumar Dwivedi, Ranjan Kumar Dubey, Advs. and For Respondents: Dhrub Narayan, Sr. Counsel with Apurva Pragya, Mrs. Anita Raghavendra, Jitendra Prasad Singh, Advs.|
|Judges:||Syed Md. Mahfooz Alam, J.|
|Issue:||Civil Procedure Code (5 of 1908) - Order 6 Rule 1|
|Citation:||AIR 2007 Pat 78|
|Judgement Date:||December 19, 2016|
|Court:||Patna High Court|
This Second Appeal has been preferred against the judgment and decree dated 3rd January, 1989, passed by Sri Basudeo Sahay, 3rd Additional District and Sessions Judge, Saharsa, in Title Appeal No. 20 of 1981 whereby he has been pleased to reverse the judgment and decree dated 14-9-1981 passed by Sri Chakrdhar Rai. Subordinate Judge, Saharsa, in Title Suit No. 31 of 1975 and after allowing the appeal dismissed the suit of the plaintiffs.
The brief facts of the case is that appellant Gauri Shanker Pd. Singh and Pachkhori Singh, who were plaintiffs in Title Suit No. 31 of 1975 filed suit for partition of the properties described in Schedule of the plaint claiming 1/3rd share and for declaration that the original defendant Most Bindabati was entitled for maintenance only. During the pendency of the suit, original defendant Most. Bindabati died and thereafter one Baid Nath Pd. Singh filed petition for impleading him as intervenor defendant. The said petition was allowed and he was made intervenor defendant and at present he is contesting the suit. After the death of Bindabati and after addition of intervenor-defendant the plaintiffs filed amendment petition and claimed that they along with the defendant Ist set are entitled to inherit the properties of Bindabati being the nearest agnets. The plaintiffs suit was decreed and the share of the plaintiffs was declared as 1/3rd in Schedule I and II properties on the basis of the finding that the plaintiffs and defendant Ist set are nearest agent of deceased Most. Bindabati Devi. But in appeal the above findings were reversed and the plaintiffs' suit was dismissed.
According to the case of the plaintiffs, one Tek Narain Singh of village Pastpar, District Saharsa was the common ancestor of the plaintiffs and defendant Nos. 1 to 7. He had two wives. From his first wife he had one son Badri Narain Singh and from his second wife he had two sons, namely, Ram Naraian Singh and Dharam Narain Singh. Ram Narain Singh separated from his two brothers long ago and on partition he was allotted a separate Tauzi bearing No. 5780 of village Pastpar. However, he died issueless. On his death, his property devolved upon his brothers. After some time Badri Narain Singh and Dharm Narain Singh also separated, Badri Narain Singh died before cadestral survey leaving behind him his three sons. namely. Maha Prasad Singh, Gore Prasad Singh and Ram Prasad Singh, who continued to be joint, Gore Prasad Singh died before cadestral survey leaving behind him his only son Harihar Prasad Singh. Ram Prasad Singh also died in the estate of jointness with his brother Maha Prasad Singh and nephew Harihar Prasad Singh along with his widow Ram Payari Devi. The property of Ram Prasad Singh devolved on Maha Prasad Singh, his full brother. The widow of Ram Prasad Singh, namely, Ram Payari Devi was allowed to receive maintenance only. The said Ram Payari Devi died in the year 1962. Maha Prasad Singh died leaving behind him one son Ganga Prasad Singh. The said Ganga Prasad Singh had three sons, namely, Sarjug Prasad Singh (defendant No. 1), Purshottam Singh (defendant No. 2) and Gauri Shankar Prasad Singh (plaintiff No. 1). Saryug Prasad Singh had a son, namely, Sunil Singh (defendant No. 3). Purshotam Singh had four sons, namely, Vinay Kumar Singh (defendant No. 4), Vinit Kumar Singh (defendant No. 5), Anit Kumar Singh (defendant No. 6) and Arbind Kumar Singh (defendant No. 7), Gauri Shankar Prasad Singh has a son, Panchkauri Singh, who is plaintiff No. 2 in the suit.
Further case is that in the year 1913, Harihar Singh died in the estate of jointness with his brother Ganga Prasad Singh and his nephew (all sons of Ganga Prasad Singh). He died leaving behind him his widow Most. Bindabati Devi, who was impleaded as defendant No. 8 in the suit but as she died during the pendency of the suit, her name was expunged. After the death of Harihar Prasad Singh, Ganga Prasad Singh, the father of plaintiff No. 1 inherited his entire property by survivorship. The widow of Harihar Prasad Singh, Most. Bindabati Devi, had no right, title and interest in the properties of Harihar Prasad Singh and she was simply a maintenance holder and entitled to get maintenance from the plaintiffs as well as from defendant Nos. 2 to 7.
Further case is that Most. Bindabati Devi was living jointly with Ganga Prasad Singh and was getting maintenance but at the instigation of the enemies of Ganga Prasad Singh, she expressed her desire to live separately and started demanding share in zamindari and agricultural land. Accordingly, she was given 5 Bighas of land of village Mohanpur along with share in the Zamindari of Mauza Pastpar Tauzi No. 4172 described in Schedule II of the plaint. It is the specific case of the plaintiffs that Most. Bindabati Devi had a right of maintenance only and she was not authorised to dispose of the property. At the time of separation in the year 1925, Bindabati Devi assured that she would not dispose of any of the properties. After separation the name of Bindabati Devi was entered into the survey Khatiyan in the year 1928-29 with respect to the lands of village Mohanpur. Her name was also entered into Register-D with respect to her shares in Tauzi No. 4172 as landlord and after vesting of Zamindari she received compensation from the Government. Further case is that Schedule I properties of the plaintiffs and defendant Nos. 1 to 7 remained joint. In the year 1954, Ganga Prasad, father of plaintiff No. 1 died and thereafter the plaintiffs and defendant Nos. 1 to 7 separated in mess and living but no partition took place by metes and bounds. The plaintiffs requested the defendants to partition the land but the defendants did not listen to, hence, necessity of filing of the suit arose.
3-A. The defendant Nos. 1 to 7 appeared in the suit and filed written statement. The defendant No. 8 Most. Bindabati Devi although appeared in the suit by filing vakalatnama but before she could file any written statement she died. After the death of defendant No. 8, one Baid Nath Prasad Singh, claiming to be the karta Putra of Most. Bindabati Devi, filed a petition praying therein to implead him as intervenor-defendant. The said petition was allowed by order dated 15-11-75 and the said Baid Nath Prasad Singh was made defendant No. 9 in the suit as intervenor defendant.
After the death of Most. Bindabati Devi and after Baidnath Pd. Singh was impleaded as intervenor-defendant the plaintiffs sought amendment in the plaint claiming properties of Bindabati Devi being the nearest reversioners going back from the original stand that Most. Bindabati was joint and she was simply maintenance holder. Thus, presently the case of the plaintiffs is that Most. Bindabati Devi was separate and she was the absolute owner of her property but the plaintiffs and defendant Nos. 2 to 7 being the nearest reversioners are entitled to inherit the properties of Bindabati Devi and are also entitled for partition of the said property besides other property.
From the perusal of written statement of defendant Nos. 1 to 7, it appears that they have supported the case of the plaintiffs and they have denied that intervenor defendant Baid Nath Singh was ever adopted by Most. Bindabati Devi as her Karta Putra. They have also denied that Baid Nath Prasad Singh had come in possession of the properties left by Most. Bindabati Devi and claimed that they are in possession of the properties left by Most. Bindabati Devi.
The case of the intervenor defendant is that the husband of Most. Bindabati Devi, namely, Harihar Prasad Singh was separate from his brothers and nephews and they had no concern with them and nothing was joint between them. After the death of Harihar Prasad Singh, his widow Most. Bindabati Devi inherited the entire property of her husband and came in possession thereof and after passing of Hindu Succession Act, 1956, she became absolute owner of the properties left by her deceased husband and it is absolutely incorrect to say that Most. Bindabati Devi was simply a maintenance holder. Her name was also entered in Register-D as absolute owner of the property of her deceased husband.
Further case of the intervenor defendant is that Most. Bindabati adopted him as her Karta Putra in the year 1937 and to confirm the act of adoption she also executed a registered deed on 2-8-1975. It has been stated that the intervenor defendant as well as his father gave their consent to become Karta Putra of Most. Bindabati Devi. It is further stated that at the time of execution of the deed on 2-8-1975 Most. Bindabati Devi had become very weak and, so, she was not in a position to sign the document of Karta Putra and, as such, she put her L.T.I. on the said document of Karta Putra and it is not correct to say that the L.T.I. of Bindabati Devi was taken only after her death. Further case is that on the basis of his being Karta Putra the intervenor defendant came in possession of the entire properties left by Most. Bindabati Devi as he was living with Most. Bindabati Devi from his childhood and it was who Bindabati Devi performed his Upnain ceremony as well as besides meeting expenses on his education. It is further stated that after the death of Bindabati the intervenor-defendant being her Karta Putra performed the last rites and Sharadh of Most. Bindabati. The intervenor-defendant further claimed that after the death of Most. Bindabati Devi he has been coming in physical possession of house and properties left by Most. Bindabati...
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