Luisa Khariain Widow Of Late Imlus ... vs Unknown
2022 Latest Caselaw 648 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No. 542 of 2003

1.      Luisa Khariain widow of Late Imlus Kharia
2.      Ashok Kharia
3.      Devid Kharia
4.      Jonson Kharia
        Minor sons of Late Imlus Kharia, represented through their mother and
        natural guardian Luisa Khariain, all residents of village- Saldega,
        P.S.- Simdega, Dist- Simdega.
                                             ..... .....           Appellants
                                 Versus
1(i). Bhaleria Kerketta @ Bhaleria Tete
1(ii). Ignasia Kerketta @ Ignasia Kujur
2. Manuel Kharia @ Bilung
                                             .... ....             Respondents
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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants         : Mr. Prem Mardi, Advocate
For the Respondents        : Mr. Shobhakar Mishra, Advocate

CAV ON 04.02.2022                          PRONOUNCED ON 23 . 02. 2022

1. Appellants are the legal representative of plaintiff who have preferred the instant appeal against the judgment of affirmation of the Additional District Judge, Simdega in Title Appeal No. 21/85 confirming the judgment and decree dated 12.04.1985 passed by Addl. Sub-Judge, Gumla in T.S. No. 23/03 of 1979-84 in which the suit filed on behalf of the plaintiff was dismissed.

2. The plaintiffs brought the suit for declaration of the deed of gift dated 13.2.1965 executed by defendant no.1 Guju Kharia in favour of Defendant no.2 Beronical Kharian to be null and void.

3. The case of the plaintiffs is that the plaintiffs and defendant no.1 Guju Kharia belong to the same family and to show, the relationship following genealogical table has been given by the plaintiffs.

Rane Kharia ↓ ___________________________________________________________ ↓ ↓ ↓ Budhu Kharia Dambol Kharia Guju Kharia (died) (died issueless) (defnt. No.1) ↓ _______________________________________ ↓ ↓ ↓ Rane Kharia Tena Kharia Patras Kharia (Plntf. No.1) (Plntf. No.2) (died issueless)

4. During the revisional survey operation plaintiff Rane Kharia and Tena Kharia and their youngest brother Patras Kharia were minor, aged about fourteen (14), ten (10) and six (6) years, being maintained and looked after by their uncle, guardian Guju Kharia (D1). Patras Kharia died soon after revisional survey. R.S Khewat No. 3 Khata No. 73, Area about 43 acres, 30 decimals situated at village- Saldega P.S. - Simdega stands recorded in the name of Rane Kharia, Tena Kharia and Patras Kharia, son of Budhu Kharia and Guju Kharia son of Rane Kharia. Khata No. 10 was recorded in the name of Guju Kharia only. Properties comprised in the above two Khatas were joint and ancestral and there was no partition among the coparceners comprising plaintiffs and Def. No. 1. Guju Kharia taking advantage of the infancy of the plaintiffs and in collusion with the survey authorities got the best of the land measuring about 30 acres 78 decimals in khata no. 73 recorded in his possession in the remarks column of the Revisional Survey records of right. Both the parties are Kharia by caste and are members of schedule Tribes governed by their customary law in matters of marriage, inheritance and succession of prevalent amongst the Kharias communities. According to the custom on the demise of a Kharia dying without a male issue, the property vests upon the agnates who are entitled to perform the last rites of the deceased. The widow, if alive is entitled to maintenance out of the share of the properties of her husband. Daughter does not inherit the property of their father but an unmarried daughter is entitled to her marriage expenses and maintenance till her marriage out of her father's assets.

Further the case of the plaintiffs is that Def No. 2 Mostt. Beronica Khariain was given in marriage to one Teman @ Bijay Kumar Kerketta son of Sanu Kharia, R/o. village- Tapkara Nawatoli, P.S.- Palkot, Dist- Ranchi (now Gumla). She was living with her husband at village- Tapkara. In the year 1962 Def. No. 1 applied to the Sub Divisional Officer, Simdega seeking permission U/s 46 Chotanagpu Tenancy Act 1908 to transfer some lands under khata nos. 73 and 10 of village Saldega P.S. - Simdega, Dist- Ranchi (now Simdega) by way of gift to his daughter Def. No. 2 (Mis. Suit no. 59-R-8(ii) of 1962-63 Guju Kharia Versus Beronica Kharia. The plaintiffs filed the objection on the plea that they were agnates of Def. No. 1 and said transfer would prejudicially affect their rights of inheritance to the property after the death of defendant

no. 1 and that properties were joint and that Def. No. 2 did not reside within same police station. Learned S.D.O. rejected their claim and granted permission to Def. No. 1 by his order dated 29.01.1985. Plaintiffs appealed to the then Deputy Commissioner, Ranchi against the aforesaid order and appeal (Revenue Appeal No. 70 R 15 of 1964-65) was also rejected on 06.12.1965.

On 13.02.1965 Def. No. 1 executed and registered deed of gift Deed No. 93, Vol. 2 of 1965 in Sub- Registry Office, Simdega. Said deed could not be acted upon as Def. no. 1 Guju Kharia continued to be in possession and enjoyment of the land comprised in said deed of gift. Plaintiffs are agnates of Def. No. 1 and are entitled to inherit the properties comprised in the deed of gift after demise of Def. no. 2. It is contended that execution of gift deed affects the reversionary rights of the plaintiffs.

5. The case of the defendants is that the Deputy Commissioner Ranchi had upheld the order of S.D.O., Simdega to transfer the land by way of gift. It has been further stated that the family was not joint nor had they joint ancestral property. At the time of survey record, the plaintiff was not minor and they were not maintained and looked after by defendant no.1 Guju Kharia. They were separate in mess and property from defendant no.1. There was an oral partition between Guju Kharia and his brothers before the commencement of revisional survey operation in respect of Khata No.73, therefore, the plaintiffs never asserted their claim over Guju Kharia's share. In Land Acquisition Case No. 44/58-59 some lands under Khata No.73 where required by the state government belonging to Guju Kharia (Def. no.1) and the plaintiffs and they were paid compensation for their respective portions of lands. Both the plaintiffs and defendants have sold part of the land of their respective share. Defendant No.2 Beronica Kharian alone was paid compensation in S.A Case No.42/71-72 for Plot No. 515 area 9 decimals. The plaintiffs were parties in this case. It is asserted that in Kharia community those having only daughters and not son can keep ghardamad who can inherit the property. Guju Kharia had kept a Ghar Damad namely Teman alias Vijoy Kerketta we are observing all the customs of keeping ghardamad and married his daughter Beronica with him, and both of them started living with Guju Kharia. Both of them cultivated lands being belonging to Beronica and Guju. Beronica Kharian got the lands by virtue of the registered deed of gift and it has been acted upon.

6. On the basis of pleading of both the parties the Trial court framed following issues:

i. Have the plaintiffs any cause of action for the suit? ii. Is the suit as framed maintainable on law or on fact? iii. Is the suit barred by the law of limitation, waiver, acquiescence and estoppel?

iv. Is there unity of title and possession between plaintiff and defendants?

v. Is the suit hit by section 34 of the Specific Relief Act? vi. Is the suit bad for non-joinder and mis-joinder of the parties? vii. Is the suit a title suit in disguising declaratory suit? viii. Is the story of partition before R.S. correct? ix. Have the plaintiffs any title over the lands of Guju Kharia? x. Is Teman @ Vijoy Kumar Kerketta a Ghardamad of Guju Kharia?

xi. Has the deed of gift dated 13.02.1965 been acted upon? xii. Are the plaintiffs entitled to relief or reliefs?

7. The trial court decreed the suit by recording the following findings of fact:

i. There had been partition between Guju Kharia and Budhu Kharia and they had been residing separately and where in possession of the land's of their own share and after the death of Budhu Kharia the plaintiffs being sons of Budhu Kharia inherited his share and are still in possession of the same. ii. The deed of gift executed by Guju Kharia in favour of his daughter defendant no.2 and her husband is genuine and valid and has been acted upon.

iii. The plaintiffs have no right over the suit land which has been transferred by Guju Kharia to his daughter defendant no.2. iv. Admittedly Teman @ Vijoy Kerketta was damad of Guju Kharia. Teman has deposed that he was ghardamad but there was no other reliable evidence to show that procedure of adoption as ghardamad was followed. It has been held that it is not much relevance with whether he was damad or ghardamad.

8. The Learned Court of first appeal has concurred with the findings of the trial court and dismissed the appeal.

9. This appeal has been admitted to be heard on the following questions of law:

(i) Whether mere entry of possession of the land in the name of one of the members of the family, shall be conclusive proof of partition?

(ii) Whether the Court of Appeal below has erred in law in holding that since in the remark column of the record of rights the possession of the parties have been shown, the same is

suggestive of the fact that the land has been partitioned between the parties?

10. Theoretical concept of partition is plain and simple. There is presumption of jointness of status of mitakshara coparcenary, the severance of joint status occurs with unequivocal intention to separate and consequent to it a partition by metes and bound. This converts the status of the parties from "joint - tenant" to "tenants in common". The parties who are thenceforth co- owners of specified undivided shares can next proceed to partition by metes and bounds.

Prior to a partition by metes and bounds each co-owner has interest in every particle of the property but upon a partition by metes and bounds he becomes the absolute owner of that which is allotted to him on the partition by metes and bounds and ceases to have any interest in the portions allotted to others.

In other words a disruption of joint family status by a definite and unequivocal intention to separate implies separation in interest and in right, although not immediately, followed by a de-facto actual division of the property.

Practically, determination of the question whether the parties are joint or separate is beset with difficulties, as the party claiming partition looks forward to gain from it, and those resisting it apprehend losing some share or settled possession of their property. There are cases where one or more of the coparcener after having sold his share acquired in an oral partition seeks partition. Adjudication involves determination of question as to precise identification of the joint family property and when precisely partition (severance of status and partition by metes and bounds) took place. There may be property which is in the separate possession of one coparcener, but really a joint property and on the other hand it may be his self-acquired property which the other members may be claiming it to be a joint family property. Partition thus involves determination of the status of jointness or severance and what are the subject matter of property constituting part of the joint or separate property.

Under Hindu Law partition may be either oral or written, total or partial. A partial partition may be as regards persons who are members of the family or as regards properties which belonged to it. Where there has been a

partition, it is presumed that it was a total one, both as to the parties and property. It is, however, open to the party who alleges that the partition has been partial either as to persons or as to property to establish it. The decision on that question depends on proof of what the parties intended, whether they intended the partition to be partial either as to persons or as to properties or as to both. When there is partial partition as to property, the family ceases to be undivided so far as property in respect of which such partition has taken place but continues to be undivided with regard to the remaining family property.

In case where partition remotely old is pleaded there can be no precise oral evidence of the actual partition. The evidence of partition has to be culled from the manner in which the parties have been living, how they have been dealing with the joint family property and the income arising therefrom. The principle applicable for ancient transaction will apply to ancient partition and normally the gaps in evidence can be filled inference and presumptions drawn properly from the evidence from the court. Long continued separation in mess and worship can seldom exist without separation in enjoyment of property or income. In such case the only means of proving partition is by prove of separate enjoyment for a sufficiently long time so as to rebut the presumption of jointness. Separate appropriation of profits is good evidence of a tacit agreement amongst the members to hold the property according to their separate shares. The mere separation from commensality has not, as a necessary consequence, effect a division of the joint undivided property, though it is a circumstance which is prima-facie evidence of separation. Even a formal division between some members could not operate as separation of the rest inter-se, unless they had intended to separate.

In Abdul Wahab Khan Vs Tilakdhari 44 C.L.J 237; A.IR 1927 P.C. 208 the following evidence was considered to be evidence of partition: (1) That the rents for definite and specific plots of land have been paid exclusively to the several proprietors for so long a period without dispute, and without any subsequent adjustment or distribution. (2) That there has been not only this appropriation of rents for separate plots; but, when some of these were compulsorily acquired for a railway in 1903 under the Land Acquisition Act, the compensation moneys were separately paid and appropriated by the separate

proprietors who had been previously collecting the rents in respect of those lands.

(3) When a record-of-rights was prepared of these villages under the Bengal Tenancy Act, and finally published in 1903, the plots referred to in (1) and (2) were recorded as being the separate pro-property of their respective landlords, without any dispute or controversy on the part of the others.

(4) The very appearance of these separated holdings, i.e., the plots from which rents are collected exclusively, on the map prepared for the purposes of this case, which lie, not in three compact blocks, but in many cases isolated and scattered, seems to negative the theory that the arrangement for exclusive collection of rent was for convenience of management.

In Mt. Ramjhari Kuer v. Deyanand Singh, 1945 SCC Online Pat 296 it was held "4. The main question for determination that arises in this appeal is whether Foujdar Mahton was separate from the family. It is not a case of partition by metes and bounds, nor there is any written instrument in proof of the alleged separation of Foujdar. In fact the evidence clearly shows that some of the properties are still held jointly. It is really a case of separation by cessation of joint interest indicating intention of the-parties to separate. Such intention is to be inferred by acts and conduct of the parties. It is an undisputed fact in the case that Foujdar had a separate residential house and he was separate in mess from the members of Lakpat branch. Cessor of commensality is not a conclusive proof of partition, for a member may become separate in food and residence merely for his convenience. But it is an element which may well be considered along with other acts and transactions of the party concerned. It is also an undisputed fact in the case that in respect of revenue paying estate held by the descendants of Ujiar Mahton, Foujdar's share in respect of each of them, or most of them, had been separately defined in the collectorate land registration records. It is also an admitted fact that in the survey record of rights, khewats and khatians, Foujdar's share in the joint family properties has been separately specified. This by itself is not conclusive proof of separation but it is a relevant evidence which enters into consideration on

the question at issue. The inference from such records may be weak or strong according to circumstances. In 47 I.A. 57 [('20) 7 A.I.R. 1920 P.C. 46 : 42 ALL. 368 : 23 O.C. 1 : 47 I.A. 57 (P.C.), Nageshwar v. Ganesha.] Lord Shaw who delivered the judgment of the Board observed: "Records of that character take their place as part of the evidence in the case. They do no more. Their importance may vary with circumstances, and it is not any part of the law of India that they are by themselves conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of the evidence in the case; they may supply gaps in it; and they may, in short, form a not unimportant part of the testimony as to fact which is available. But to give them any higher weight than that might open the way for much injustice, and afford temptation to the manipulation of records, or even of the materials for the first entry."

8. The above discussion is germane to the present case as the substantial question of law has been framed regarding the evidential effect of entries in the record of right. There is no rule of law that they are conclusive evidence of jointness or severance, but they are valuable piece of evidence having a direct bearing on the status of parties depending on the other available evidence. Cadastral survey operations were conducted in the areas comprising the present state of Jharkhand in the early years of 20th century and were published some times in 1902-11 and the revisional survey was conducted 1927 onwards in different district. In these surveys rents of every denomination was fixed. There is a presumption of correctness in favour of entries in the record of rights under Section 84 of the CNT Act 1908. If the name of raiyats is separately recorded and separate possession has been shown in the remarks column then it is a matter of appreciation in the light of other evidence as to whether it was merely separate possession for convenience or the presumption of jointness stood rebutted. Thus, with respect to the first substantial question of law it can be said that it will depend on the facts and circumstance of a particular case and the overall evidence on record to hold whether separate entry in record of right can be regarded as conclusive proof of partition or not.

9. Challenge to the gift of deed by defendant no.1 in favour of his daughter defendant no.2 proceeds on two grounds. First, is that since the property was not partitioned and so defendant no.1 had not right to transfer and secondly females are not entitled to inheritance so the gift was being in variation to the customary law of inheritance was null and void. Here on the basis of evidence on record the following finding of facts emerges:

A. R.S Khata No.73 area 43 acres 30 decimals situated in village

Saldenga stood recorded in the names of Rane Kharia, Tena Kharia and Patras Kharia. 30 acre 78 decimals of land in Khata no. 73 recorded in the name of defendant no.1 Guju Kharia in the remarks column (Ext E).

B. Khata no.10 has been recorded in the name of Guju Kharia this is

however not the part of the suit land but only the land appertaining to Khata no.73 is detailed in the schedule of the plaint.

C. In 1962 Defendant no.1 sought applied for permission to the

SDO under Section 46 of the CNT Act of some lands of Khata Nos.73 and 10 to his daughter Beronica Kharian. The plaintiff filed objection to it without success and appeal against this order was also decided in favour of the Defendant no.1.

D. Defendant no.1 executed the registered deed of gift in favour of

his daughter Defendant no.2.

E. In Land Acquisition Case No.44/58-59 some lands under khata

no.73 were acquired by the Govt. belonging to Guju Kharia and the plaintiffs and they were paid for the land acquisition. The defendant no.2 Baronica Kharian alone was paid compensation in S.A. Case no. 42/71-72 for Plot No.515 area 9 decimals. F. DW 17 Paulus Dungdung has deposed that partition took place

4-5 years before the revisional survey when he was 14-15 years of age.

11. From the above, it is evident that although the separate entries in the name of Guju Kharia was recorded in the R.S. Survey more than 40 years before the filing of the present suit in 1979, but at no point of time any objection was raised against the said entries. In the meantime both the sides

received compensation for a portion of their land acquired by the Govt. When defendant no.1 filed suit for permission to gift his landed property to his daughter even then no partition suit was filed by the plaintiff. Only after the execution of the registered gift after due permission from the competent authority, the present suit has been filed to declare the deed null and void. Both the learned Courts below by discussing the evidence have dismissed the suit by holding that there had been partition and parties were in possession of their respective share, and held therefore that conveyance of property by registered deed of gift was a valid document. Inference of partition has not only been taken on the basis of separate entries in the record of right but also other evidence.

The first substantial question of law is more in the nature of the import of the entries in the records of right which has been answered in the earlier part of the Judgment. The second substantial question of law is answered in favour of the defendants/respondents. The Judgment and decree passed by the learned court is affirmed.

The appeal is dismissed. Consequently, I.A. Nos. 1857/18, 2627/21, 3214/21, 4919/21 and 6892/21 stand disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 23rd February, 2022 AFR / AKT