Law presumes jointness. The defendant who denies the same has to dislodge the presumption. Separate living in the same village in different houses, joint record with 'specification of shares in the record of rights arid separate payment of house taxes in a given case may not be compatible with a theory of partition by metes and bounds and may lead to the conclusion that the parties are living and cultivating lands separately for convenience.
In the ultimate analysis and in disagreement with the learned courts below, I hold that the presumption of jointness of a Hindu Mitakshara family to which the parties belong was not rebutted by evidence of a prior partition by metes and bounds by the respondents. Although the parlies were living separately in mess and cultivation yet that was for convenience and to avoid family disputes. There has not so far been a partition by metes and bounds of the suit lands. The plaintiff is, therefore, entitled to a preliminary decree for partition of the suit lands in respect of his 1/3rd share therein.
Orissa High Court
Brajananda Pradhan vs Sachidananda Pradhan And Ors. on 1 August, 1989
Equivalent citations: AIR 1990 Ori 29
Bench: K Mohapatra
1. The appellant who is the plaintiff in the suit for partition has assailed the judgment and decree passed by the learned Additional Munsif, Athmallik dismissing the suit which in appeal were confirmed by the learned Subordinate Judge, Angul.
2. The plaint reveals the following genealogy and facts :--
Genealogy
Rajan Pradhan (deceased)
Kartika (deceased) = Kia Bewa
Tirtha (deceased)
Kirtan (defendant 3)
Sachidananda(defendant 1)
Bhagaban (defendant 2)
Brajananda(plaintiff)
The parties indisputably have 69.59 acres of land in village Purunamanatri described in greater detail in the plaint schedule which are ancestral joint family property recorded jointly in the names of the appellant and the respondents in the latest settlement record of rights. Each of the branches is entitled to 1/3rd share. There has not so far been a partition by metes and bounds but the parties are in possession according to convenience. The appellant is in possession of lands less than his legitimate share. Therefore, he prayed for a decree for partition of the suit lands by metes and bounds.
2. The respondents in a joint written statement allege
d that there was a family partition in the year 1940 in which some lands of village Purunamanatri and about 11 acres of land belonging to the family in village Tumbabajeni were allotted to the share of the appellant's father. While he was in possession of his share of lands in Purunamanatri, he disposed of the Tumbabajeni lands in favour of one Sanatan Pradhan. So a fresh suit for partition was not maintainable.
3. The learned Additional Munsif considered the oral and the documentary evidence particularly an unregistered document suggesting partition (Ext, E) and came to the conclusion that the fathers of the parties being three brothers had completely separated in mess and property. Therefore, he dismissed the suit for partition by metes and bounds. On appeal, the learned Subordinate Judge discarded a few documents including Ext. E, but nevertheless came to the conclusion for reasons of his own that there had been an earlier partition and so the appellant could not pray for partition afresh. Therefore, he affirmed the decision of the learned lower court.
4. Mr. S. C. Ghosh, learned counsel appearing for the appellant raised the follow- ing contentions :--
(1) There was no document showing parti- tion of joint family property of the parties by metes and bounds much less Ext. E which was a manufactured document and saw the light of the day after the evidence of both the parties in the trial court had concluded. In any event, if at all the document is believed, it will at best show disruption of the joint family and separate possession of ancestral lands by the parties according to convenience.
(2) About 11 acres of land of village Tumbabajeni belonging to the joint family were sold in auction for default of land revenue to the Raja of Athmallik and pur-chased by the appellant's father Tirtha Pradhan in 1941, but subsequently he sold the land to qne Sanatan Pradhan in the year 1947. So the lands of Tumbabajeni were not acquired by the appellant's father on partition, but were Self-acquisitions over which the other two branches had no claim or share.
Mr. A. C. Mohanty, learned counsel appear-ing for the respondents, on the other hand, urged that the concurrent findings of fact recorded by the learned courts below are not available to be disturbed in second appeal and in any view of the matter the evidence, both oral and documentary, conclusively proved a prior partition by metes and bounds and so the suit was rightly dismissed.
It is necessary to examine the contentions with reference to the findings recorded by the learned courts below on the basis of evidence, both oral and documentary, adduced by the parties.
5. The appellant (P.W. 1) stated in his evidence that there was no partition amongst the three branches. His father Tirtha was serving as a Constable and had purchased the Tumbabajeni lands in auction. D.W. 1 (respondent No. 3) stated that forty years before his giving evidence in court, the three branches partitioned the joint family property and separated in mess. The lands of Tumbabajeni and some lands of Purunamanatri were allotted in favour of the appellant's father. In cross-examination, he was unable to say which plots fell to whose share in the said partition and how many acres each brother got to his share. He did not take any action to record his name separately in the revenue records in respect of the lands which fell to his share. D.W. 2, a co-villager stated that he did not know if there was any partition amongst the brothers, hut they were separately cultivating the lands for forty years before he gave evidence. They were also separate in mess and cultivation. He admitted that the lands of Tumbabajeni were purchased by the appellant's father Thirtha which were sold, in auction. He also stated that the lands of Purunamantri were not partitioned amongst the three branches. Because the three raised disputes they separated in mess and cultivation. D.W. 3 is respondent No. 1. He stated that his father and his brothers were separately living in mess and cultivation. Tumbabajeni lands were allotted in favour of Tirtha Pradhan along with some other lands of Purunamanatri. In cross-examination he admitted that there was no partition deed. The settlement authorities did not allow separate recording of lands in the record of rights on account of the ceiling proceedings. An analysis of the aforesaid oral evidence will show that the three branches have been messing and cultivating lands separately but there was no proof of a partition by metes and bounds. The lands of Tumbabajeni belonged to the joint family which was sold in auction and subsequently purchased by Tirtha Pradhan. Later the lands were sold to one Sanatan Pradhan.
6. Ext. A is the record of rights of the suit lands published in 1976. This is the latest in which the names of the three brothers of Rajana Pradhan were recorded as tenants. In the remarks column there was no note of separate possession of different plots. Ext. E said to have been executed on 10-3-1940 by the three brothers on a plain paper was produced in court after the evidence was closed. Yet the learned Munsif accepted it because it was a document of thirty years old for the purpose of just decision of the suit. From the trend of the discussion in his judgment it appears that he was greatly influenced by Ext. E in which it was recited that in the presence of gentlemen the lands of Purunamanatri were divided amongst the three brothers in equal shares. The learned lower appellate court, however, did not place reliance on these documents. Without entering into any controversy as to whether Ext. E should be outright rejected because of late production or was a forged document, suffice it to say that on the face by virtue of it there was no partition by metes and bounds. In it description of the lands was not given. It was also not stated which of the plots fell to the share of which brother. There was no division of movables or of the homestead. Therefore, it can at best be said that Ext. E proved disruption of the joint family and amicable! possession of lands by the three brothers. Law presumes jointness. The defendant who denies the same has to dislodge the presumption. Separate living in the same village in different houses, joint record with 'specification of shares in the record of rights arid separate payment of house taxes in a given case may not be compatible with a theory of partition by metes and bounds and may lead to the conclusion that the parties are living and cultivating lands separately for convenience. Exts. C and D are orders in ceiling proceedings. An observation has been made in Ext. D that the three brothers were staying separately and having separate economic interest and cultivation. So they were treated as three families and were permitted to retain three ceiling areas for the purpose of the ceiling proceeding. The brothers submitted statements saying that they were living and cultivating lands separately. Even, if the proceedings and the statements are accepted, they will not show a partition by metes and bounds.
7. In Tumbabajeni the parties had Ac. 11.26 decimals of land as per the record of rights (Ext. B). But in the year 1941 appellant's father Tirtha was mutated alone in respect thereof. There is no mention in Ext. E that Tumbabajeni lands were allotted to the share of Tirtha. Both P.W. 1 and D.W. 2 stated that the lands were sold in auction. Tirtha who was serving as Constable purchased the lands and got his name mutated in the year 1941. Therefore, it became his self-acquisition. Subsequently the land was sold to a stranger named, Sanatan Pradhan. These evidence, both oral and documentary, will show that Tumbabajeni lands were the self-acquisition of Tirtha. There is no evidence of the respondents that this land was allotted to the share of Tirtha in the family partition. A member of the Hindu joint family can acquire lands out of his separate earning. It cannot, therefore, be concluded that the learned lower courts were not justified in holding that the Tumbabajeni lands being the self-acquisition of Tirtha were outside the purview of the partition (see (1978) 45 Cut LT 409 : (AIR 1978 Orissa 182), Dukhi Dibya v. Landi Dibya). In this connection reference may also be made to AIR 1980 SC 1173, Kalyani v. Narayanan, in which the principle of severance of joint status and partition has been stated by the Supreme Court.
8. In the ultimate analysis and in disagreement with the learned courts below, I hold that the presumption of jointness of a Hindu Mitakshara family to which the parties belong was not rebutted by evidence of a prior partition by metes and bounds by the respondents. Although the parlies were living separately in mess and cultivation yet that was for convenience and to avoid family disputes. There has not so far been a partition by metes and bounds of the suit lands. The plaintiff is, therefore, entitled to a preliminary decree for partition of the suit lands in respect of his 1/3rd share therein.
9. In the result, the appeal succeeds and the judgments and decrees of the learned lower courts below are set aside with costs throughout. A preliminary decree for partition is passed in which each of the parties is given 1/3rd share in the suit lands. The appellant shall apply for the final decree proceeding and deposit a sum of Rs. 200/- as the fees of a civil court Commissioner to effect the partition by metes and bounds. While making the partition and allotment, the civil court Commissioner shall take into consideration the convenience and equities of the parties and shall make adjustment as would be legal and proper. The costs of the final decree proceeding shall be borne by the parties in proportion to their respective shares.
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