Unknown vs Bhagya Bala Dasi
2025 Latest Caselaw 2908 Jhar

Jharkhand High Court

Unknown vs Bhagya Bala Dasi on 27 February, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       S. A. No. 294 of 1991(P)
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1(a)(i) Jhapa Bala Mahtoin, W/o Late Kinkar Mahto, R/o Village- Khamarchak, P.O.-Mohanbank, Dist.-Jamtara 1(a)(ii) Sarswati, W/o Prabodh Mahto, D/o Late Kinkar Mahto, R/o Village-Khamarchak, P.O.-Mohanbank, Dist.-Jamtara 1(a)(iii) Manju, W/o Manohar Mahto, D/o Late Kinkar Mahto, R/o Tarajora, P.S. Sarwan, Dist.-Deoghar 1(a)(iv) Lakhi, W/o Amulya Mahto, D/o Late Kinkar Mahto, R/o Babudih, P.S.-Binda Pathar, Dist.-Jamtara 1(b) Gaya Prasad Mahto, S/o Late Nibaran Mahto, R/o Village-Danr, P.O. Mohanbank, P.S. Binda Pathar, Dist.-Jamtara 1(c) Mohit Kumar Yadav, S/o Shyam Lal Mahto, R/o Village-Danr, P.O. Mohanbank, P.S. Binda Pathar, Dist.-Jamtara 2(a) Achla Devi, W/o Shankar Mahto 2(b) Tanda Wala Devi, widow of Late Gunadhar Mahto both D/o Bhutnath Mahto, R/o R/o Village-Khamarchak, P.O. & P.S.-Nala, Dist.- Jamtara 3(a) Aarti Devi, W/o Late Nagendra Mahto 3(b) Vikash Mahto, S/o Late Nagan Mahto @ Nagendra Mahto 3(c) Samir Kumar Yadav, S/o Late Nagan Mahto @ Nagendra Mahto, All R/o Village-Khamarchak, P.O.-Mohanbank, P.S.-Nala, Dist.-Jamtara 3(d) Anjana Devi, D/o Late Nagan Mahto @ Nagendra Mahto, W/o Sudhir Kumar Yadav, R/o Village-Jalghara, P.O. & P.S.-Sonarethari, Dist.-Deoghar 3(e ) Chandana Devi, D/o Late Nagan Mahto @ Nagendra Mahto, W/o Kamdeo Prasad Yadav, R/o Village-Jalghara, P.O. & P.S.-Sonarethari, Dist.-Deoghar 4 (a) Pushpa Deya, widow of Late Dhiren Mahto 4(b) Prakash Chandra Mahto, S/o Late Dhiren Mahto 4(c ) Utpal Kumar Yadav, S/o Late Dhiren Mahto, All R/o Village- Khamarchak, P.O.-Mohanbank, Dist.-Jamtara 4(d) Pramila Yadav, D/o Late Dhiren Mahto, W/o Dinesh Yadav, R/o Village- Baretta, P.O.-Pahariya, Dist.-Deoghar 4(e) Jharna Yadav, D/o Late Dhiren Mahto, W/o Rajendra Yadav, R/o Village-Gidhya, P.O.-Bhojpur, Dist.-Deoghar 4(f) Bandana Yadav, D/o Late Dhiren Mahto, W/o Arjun Yadav, R/o Village-Devpur, P.O.-Devipur, Dist.-Deoghar 4(g) Suchitra Yadav, D/o Late Dhiren Mahto, , R/o Village- Khamarchak, P.O.-Mohanbank, Dist.-Jamtara .... Appellants Versus

1. Bhagya Bala Dasi, D/o Late Balram @ Khandu Mahto, R/o Village- Mohnabank, S.C. Tilaki, P.S.-Nala, Dist.-Dumka

2. Smt. Mahatain, D/o Late Musuri Mahatain & Bhutnath Mahto and W/o Naresh Mahto, R/o Jamtara, S.C. Karaya

3. Dasi Bala Mahatain, W/o Late Radhanath Mahto

4. Sudhakar Mahto

5. Shashank Mahto, S/o Late Radhanath Mahto

6. Palabala Mahatain, W/o Kanta Mahto

7. Patubala Mahatain, W/o Jagarnath Mahato

8. Jababala Mahatain, W/o Gangadhar Mahato

9. Minor Suru Mahatain, Nos. 8 and 9 D/o Late Radhanath Mahato, the miner represented by their mother and natural guardian Dasi Bala Mahatain

10. Darpan Narain Mahato, S/o Late Madhu Mahato, R/o Mohanabank, S.C. Tilaki

11. Expunged

12. Sahagibala Dasi, W/o Harinada @ Lakhpati Mahato

13. Prabir Kumar Mahato

14.Minor Nunulal Mahato, S/o Late Haripado Mahato

15. Minor Karuna Bala Dasi

16. Minor Pramila Bala Dasi

17.Minor Sushila Bahal Dasi, D/o Late Haripada Mahato, the minors are represented by their mother and natural guardian Sahagibala, R/o Tilaki, S.C. Tilaki, P.S.-Bindapather, Subdivision Jamtara, Dist.- Dumka (Santhal Parganas)

18. Sudhir Mahato, S/o Late Sudarshan Mahato, R/o Tilaki, S.C. Tilaki, P.S.-Nala, Subdivision-Jamtara, Dist.-Dumka

19. Shyam Sukhi Mahatain, D/o Late Sudharshan Mahato and W/o Balram Mahto, R/o Sancpchala, P.S.-Masalia, Subdivision and Dist.- Dumka

20.Basanta Mahato, S/o Late Rashana Mahatain and Dhananjay Mahato, R/o Tilaki, S.C. Tilaki, P.S.-Nala, Subdivision-Jamtara, Dist.-Dumka ... .... Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Rahul Kr. Gupta, Advocate Mr. Arbind Kr. Choudhary, Advocate Mr. Saurya Prakash, Advocate Mr. Rakesh Kr. Singh, Advocate Ms. Swati Singh, Advocate For the Respondents : Mr. Dilip Kr. Prasad, Advocate Mr. Sunil Kr. Mahto, Advocate

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Oral Order 32 / Dated : 27.02.2025

1 Defendants are in appeal against the judgment of reversal in Title Appeal No.32/1985 by which the plaintiff's suit for partition has been decreed, which was earlier dismissed by the trial court.

2. Plaintiff filed the suit for partition for partition of 1/3rd share in

the Schedule A property, 1/9th share in Schedule B & E, 1/2 share in Schedule C and 1/6th share in Schedule D property.

3. Genealogy of the parties appended in para 2 of the plaint is as under: -

Kalu Mahto

Durga Mahto Raj Kishore Mahto Ram Bahadur Mahto (DW1)

Kutu Bala Dasi (D1) Sunu Bala Dasi (D2) Alka Bala Dasi Balram @ Kandu Mahto (died in 1944)

Nagen Mahto (D3) Dhiren Mahto (D4) Chapla Bala Dasi (P1) Bhagya Bala Dasi (P2)

4. Genealogy is not in dispute. Ram Bahadur Mahto was the son of Kalu Mahto and Balram Mahto was the son of Ram Bahadur Mahto, who was married with Chapla Bala Dasi.

5. Dispute is with regard to claim of adoption of Bhagya Bala Dasi in 1974 by registered deed of adoption by Chapla Bala Dasi. Two sets of written statement were filed on behalf of defendants. As per the written statement of the defendant first party- Balram Mahto died on 10th of Magh 1341 B.S. in state of jointness with his uncle Durga Mahto and Raj Kishore Mahto and as a member of Mitakshara joint family. His interest in the suit property devolved on the sole surviving coparcener- Raj Kishore Mahto, who became owner of the suit property.

6. Further case of the defendants is that the after the death of Balram Mahto, surviving brothers exchanged Plot No.449 with Plot No.1110 of one Smt. Phul Kumari Mahatain, wife of Biranchi Mahto and two documents of exchange were executed. The said Phul Kumari Mahatain after taking the said plot no.449, built several houses and have been living with the family to the aforesaid extent. Further, there is

specific denial of adoption of Bhagya Bala Dasi by Chapla Bala Dasi, whom they claim to be stranger and not the member of joint family property.

7. Learned trial Court dismissed the suit by recording a finding of fact that the plaintiff was not the adopted daughter of deceased- Chapla Mahatain and further held that Balram Mahto died prior to 1937 before Hindu Women's Right to Properties Act, 1937 came into force. Further, trial Court also held that the partition suit was barred by limitation.

8. The First Appellate Court decreed the suit by recording a finding that Bhagya Bala Dasi was adopted daughter of Chapla Bala Dasi and Balram Mahto had died in 1944. It was also held by the first appellate Court that there existed unity of title and possession between the parties over the suit lands.

9. The Second Appeal has been admitted to heard on the following substantial question of law: -

I. Whether the learned appellate Court was correct in allowing the appeal in view of the fact that Chapala Bala Mahatain, wife of late Balram @ Khandu Mahato became widow much before 1937 and further, it is admitted case that she was issueless and, therefore, widow Chapala Bala Mahatain had no right to succeed to the properties of her husband and the interest of Balram Mahto devolved upon his surviving coparcener, Durga Mahto and Raj Kishore Mahto?

II. Whether the learned appellate Court was correct in allowing the appeal in view of the fact that the material evidence produced by the defendants-appellants herein, to prove that Balram @ Khandu Mahto had died much before 1937? III. Whether the lower appellate Court was legally correct in accepting the oral evidences of P.Ws. who had no personal knowledge as against the oral evidence of D.W.s, who were relatives and had personal knowledge of the death of Balram before 1937?

10. It is submitted by learned counsel for the appellants that the

registered deed of adoption was not admitted in the pleadings and specifically denied in para-14 of the written statement. Further, presumption in favour of a registered deed of partition is rebutted by evidence of DW2.

11. It is difficult to be persuaded by the argument advanced on behalf of the appellants that statutory presumption of law under Section 16 of Hindu Adoption and Maintenance Act, 1956 has been rebutted by DW-2. A close look at the testimony of this witness will show that he has admitted in para 7 that this witness had heard about after 2 to 4 months of the function of adoption that Chapla Bala Dasi had taken daughter of Shankar Mahto in adoption as her daughter. This in effect admits the factum of adoption. Thus, the argument of rebutting the adoption duly registered is, therefore, not sustainable.

12. On the substantial question of law regarding the death of Balram Mahto before 1937, there is specific pleading in para 12 of the WS that, the husband of Chapla Bala Dasi i.e. Balram @ Kandu Mahto had died on 10th Magh, 1341 BS which equivalent to Roman Calendar is 1934 i.e. before coming into force of the Hindu Women's Rights to Property Act, 1937(for short 1937 Act). In support of this pleading, DWs. 1 to 5 and 8 have been led on behalf of the appellant/defendant.

13. The main line of argument on behalf of the appellant is that the defence witness has clearly stated that Balram Mahto died before coming into force of the, 1937 Act and, therefore, she did not acquire any right, title and interest, rather the interest of Balram Mahto devolved on his agnates. Section 4 of 1937 Act makes the points clear that nothing in this Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. Further, the finding regarding the death of Balram Mahto in 1944 is perverse which will be apparent from the reading of para 26 of the judgment.

14. With regard to the year of death of Balram Mahto, it is argued that general statements of the witnesses have been referred to, whereas the Trial Court has assigned specific reasons that the plaintiff's

witnesses could not have stated about the date of death, as they were not alive even at that time, when that event took place, whereas the defence witnesses were accepted considering their age and that they were alive on the said date.

15. A bare perusal of the testimony of the DW-1 will show material contradiction regarding year of death of Balram Mahto examined on 16.05.1981. In para-3 he has deposed that Balram was married about 36-37 years ago and after 2-3 years of marriage he died. Meaning thereby, he had died about 33-34 years from the date of his evidence, which will be in any case after 1937. Therefore, the plea of the defendant that he died before 1937 has been contradicted by their own witness. In this view of the matter, I do not find any infirmity in the findings of the learned First Appellate Court that Balram Mahto died after 1937. Substantial questions of law II and III is accordingly answered in favour of the Respondent/Plaintiff.

16. As Balram Mahto had died intestate after coming into force of the 1937 Act, having an interest in the joint family property, his widow Chapla Bala Dasi acquired a limited interest in his property, and after coming into force of the Hindu Succession Act,1956 the limited estate of the widow got transformed into absolute ownership in terms of Section 14 of the Act. Further, after coming into force of the Hindu Succession Act, 1956 daughter and wife being Class I heir became entitled to the right of inheritance to the interest of the coparcener in the joint family property after his death, in terms of Section 6 and 8 of the said Act.

This Court is of the view that there is no infirmity in the impugned judgment and decree passed by the first appellate Court.

Second appeal accordingly stands dismissed. Pending I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) AKT/Satendra