Bujhawan Singh v. Mt. Shyama Devi

Mahapatra, J.:— This appeal by the plaintiffs arises out of a suit for partition of joint family properties scheduled to the plaint, involving a dispute about the parentage of the first five plaintiffs. They claimed that they were sons of one Kanchan Singh through his second wife Churia and the original defendant No. 1 (who now is dead) was their step brother through the first wife of Kanchan Singh. A genealogy was appended to the plaint showing one Dhana Singh had three sons Jagmohan, Bansi and Chandi. Jagmohan's son was Kanchan Singh whose sons-were the defendant No. 1 and the first five plaintiffs. Defendants 2 to 5 are sons and grandsons of a Baikunth Narain Singh, defendant No. 1. Plaintiffs 6, 7 and 11 are sons and grandson of plaintiff No. 1, Ramkhelawan Singh. Plaintiff No. 8 is son of the second plaintiff Bujhawam Singh and plaintiffs 9 and 10 are sons of the third plaintiff Lachhmi Singh. During the suit Ramkhelawan Singh died, so also defendant No. 1 Baikunth.

2. Plaintiffs' case was that Jagmohan, Bansi and Chandi formed a Hindu joint family having ancestral properties. They also acquired properties out of the income from the ancestral properties. While in joint possession of the same, there was am amicable oral partition between the three branches in 1336 Fs. in which raiyati lands described in schedules 1-Ka and 1-Kha of the plaint and the zamindary interests, mortgage debts and other debts as mentioned in the plaint schedule were allotted to the share of the plaintiffs and the defendants, and they have been, since then, in joint possession of those properties. The properties allotted to the branches of Bansi Singh and Chandi Singh came in their respective separate possession. The lands mentioned in schedule 1-Kha were purchased by and belonged to Kanchan Singh and the plaintiffs and the defendants had been also in joint possession of the same. On account of difference amongst the two wives of Kanchan Singh the plaintiffs had to mess with their mother, separate from their step mother and her son and grandson in 1933, but the properties continued to remain joint in the management of defendant No. 1 who was the eldest member and Karta of the family. The properties described in Schedule 2 of the plaint were in separate possession of the plaintiffs for their pocket expense. On account of difference and suspicion, the plaintiffs claimed partition from the defendants which was refused and the suit therefore, had to be instituted claiming five-sixth share for the plaintiffs, the remaining one-sixth belonging to defendant No. 1 and his branch.

3. In the trial Court, on account of death, plaintiff No. 1's name was expunged, his heirs having already been on record as plaintiffs. The original defendant No. 1, after his death, was substituted by his widow Shyama Devi. His other heirs were already on record. The minor sons of defendants 2 and 3, namely, original defendants 4, 5, 6 and 7 (grandsons of defendant No. 1 Baikunth) were also expunged for failure of necessary steps for appointment of a guardian-ad-litem for them.

4. The suit was contested by defendant No. 2. The written statement was filed by him and his father defendant No. 1. Plaintiffs' title and possession over the suit properties were denied. The basis of the contest mainly was that Kanchan Singh, father of defendant No. 1, had not two wives. He had only one wife and defendant No. 1 was the only son through her. Kanchan Singh being of loose moral character had left the house and began to live with one low caste woman (Tirani woman). Plaintiffs 1 to 5 were born of that woman who was also accessible to others. The original ancestor Dhana Singh's three sons Jagmohan, Bansi and Chandi were of poor means and maintained themselves with difficulty. Jagmohan went to America in young age and became a medical practitioner there and began to support the family which had only 8 bighas of land, with his earnings. He amassed great fortune and acquired large properties. By a deed of gift in 1906 he made over one third of all the properties acquired by him to defendant No. 1, Baikunth Narain Singh, since when he (Baikunth) came in exclusive possession of those properties. Kanchan Singh was completely excluded. The other two-third shares went to Bansi Singh and Chandi Singh in equal halves. Jagmohan became annoyed with Kanchan Singh as he had become vagabond and of immoral character.

5. In 1336 Fs. there was an amicable partition between defendant No. 1 with his branch and the other two branches of Bansi Singh and Chandi Singh. A deed of partition regarding the same was executed on the 10th of January 1930. Following that partition, the defendants have been all through in separate possession of the suit lands allotted to their share. Baikunth Narain Sing's name was also recorded over the raiyati lands in the office of the landlords and his name was also recorded in respect of the villages allotted to his share in register D. None of the plaintiffs was in any way in possession of any of those properties and they had or have no interest whatsoever in the same. About the properties described in schedule 1-Kha of the plaint, it was said that those lands were sold for arrears of rent in Court auction and were purchased by Jamuna Singh. The claim of the plaintiffs that they were in separate possession of some lands for their pocket expense was stoutly denied and it was asserted that khata No. 118 Ka had been allotted to the share of the defendants in the partition of 1930. Similar plaintiffs' assertion that they separated in mess only from the defendants was challenged. Defendants also claimed that on account of their exclusive possession in an open manner for a long period, they had acquired a perfect title by adverse possession meaning thereby that alternatively if the plaintiffs had any claim, that had been extinguished.

6. The trial Court dismissed the plaintiffs' suit holding that plaintiffs 1 to 5 were not the sons of Kanchan Singh through a married wife and that the defendants' possession over the suit properties had all along been exclusive since the partition in 1930 between the three branches of Kanchan, Bansi and Chandi. The gift made by Jagmohan to the original defendant No. 1, Baikunth, was also found valid and it was held to be in respect of the separate property of Jagmohan. On these important findings the plaintiffs lost their suit and have come in appeal.

7. The appellants very strongly assailed the finding about the paternity of the plaintiffs 1 to 5. Their case was that they were sons of Kanchan, Singh through his second married wife, while the-original defendant No. 1, Baikunth Narain Singh, was Kanchan's son through his first wife. A written statement was filed on behalf of original defendant No. 1 and his son defendant No. 2 who alone contested the suit after the death of his father. He will be referred to hereafter as defendant. He averred in paragraph 6 of the written, statement that the character of Kanchan Singh became very bad and he leaving his home and becoming separate from his family members began to reside with a corrupt woman belonging to Tiarin caste at another place and he had no connection and concern with his family. Plaintiffs 1 to 5 are-not at all the sons of Kanchan Singh deceased, rather they are the illegitimate sons born from the womb of the said low caste corrupt body. Their mother was a woman of bad character and it was not certain as to with whom the said corrupt woman lived. This defence, in other words, meant that plaintiffs 1 to 5 were illegitimate sons, born from the low caste woman with whom Kanchan Singh was residing at a place different from his home. During evidence the defendant put up another story that plaintiffs 1 to 5 were born of a low caste woman Meghia by name kept by another Kanchan Singh son of Mangal Singh of the same village Bhagatpur which was also the village of the defendants' family. This was entirely's case different from what they pleaded in the written statement and no evidence should have been permitted in support of that. It is a well known principle that a party cannot lead evidence to prove a plea which is different from and contrary to the plea put up in his pleading. It appears that after the plaintiffs proved two entries in the death registers (Exts. 9 and 9(a)) to show that the two wives of Kanchan Singh died on the 12th of February and the 26th of June 1947 that the defendant introduced his different story that one of those entries. Ext. 9, related to the death of the wife of another Kanchan Singh. The other entry, Ext. 9(a) showing the death of Sonbanti, wife of Kanchan Singh, was not disputed and was accepted as relating to the father of defendant No. 1 and the grandfather of contesting defendant No. 2. The evidence on the defendant's side about the connection of the plaintiffs 1 to 5 with another Kanchan Singh through a woman Meghia by name has also to be rejected in view of a clear and unmistakable admission in the deposition of the only deposing defendant (D.W 19) who stated “The plaintiffs are not sons of Kanchan Singh brother of Parmeshwari.” Their case was that Mangal Singh had three sons Parmeswari, Tunha and Kanchan Singh. By saying that the plaintiffs are not the sons of Kanchan Singh, brother of Parmeshwari, the witness clearly ruled out the defence story of the connection of the plaintiffs with the second Kanchan Singh. He also stated: “Parmeshwari is not called Rai. He is called Singh.” In that view the entries against serial Nos. 692, 693 and 696 in an electoral roll for circle No. 9 village Bhagatpur (Ext. 7) cannot be related to Kanchan Singh son of Mangal Singh. The entries are:

692, 149 Parmeshwari Rai son of Mangal Rai, male, 54

693, 149 Tunha Rai son of Mangal Rai, male 74

696, 149 Kanchan Rai son of Mangal Rai, 64. Learned Counsel for the defendant-respondents argued that Mangal Singh and Mangal Rai are the same, the two surnames being interchangeable. But that is in conflict with what the defendant stressed in his evidence (D.W 19). The entry No. 696 in this electoral roll cannot, therefore, be taken to refer to another Kanchan Singh of village Bhagatpur.

8. A registered deed of sale of the 11th of June 1944 purporting to have been executed by one Mangal Das in favour of one Kanchan Singh son of Mangal Singh was marked for the defendants as Ext. D(1) and much reliance was put upon the description of the transferee in that document both by the trial Court and learned Counsel for the respondents, as proof of the existence of another Kanchan Singh, son of Mangal Singh. This document was proved by D.W 18. He said that he knew Mangal Das who had executed the sale deed in favour of Kanchan. Jugeshwar Prasad signed for the executant and the latter gave thumb mark in his presence. He did not remember if he had seen Kanchan Singh. He did not recognise Kanchan Singh. On looking to the document it is found that no Jugeshwar Prasad but the Umeshwari had attested not the thumb mark but a pen mark of the executant. There is one thumb mark on the document but there is no writing of anyone to indicate whose thumb mark it was. That thumb mark also has not been marked as an exhibit with reference to the deposition of this witness. The whole document was marked as Ext. D(1). The definite inaccuracy as to the person who attested takes away any dependiblity upon the deposition of this witness. Besides, he admitted that he had not read the sale deed at any time before or during his deposition. He did not see or recognise Kanchan Singh. He came to depose as he was asked by the contesting defendant Balmiki whom he had known for 10 years and for whom he had worked also. That this witness was quite foreign to this document is clear from the tenor of his evidence and the Incorrect statements made by him. He admitted that he was a deed writer but he did not remember of the documents he had scribed. He did not scribe Ext. D(1) nor did he figure as a witness in that. He did not give any reason why he was present when this document was written or executed. I cannot accept that he was at all present when this document came into existence. His evidence, therefore, cannot be taken as proving the sale deed. Secondly, the description of the transferee as Kanchan Singh, son of Mangal Singh, denoting the relationship between the two by birth is not admissible within the meaning of sub-section (5) of Section 32 of the Evidence Act in absence of any material that either the executant or the scribe of that document had any special means of knowledge about that relationship. D.W 18 made it clear that Kanchan Singh was not present at the time when the document was written or executed. Therefore a statement about the relationship between two persons by another person who is not shown to have any special means of knowledge cannot be relevant and, therefore, has to be excluded completely from consideration.

9. (After discussion of oral evidence adduced by the defendant, His Lordship proceeded. These were all the witnesses on which learned Counsel for the respondents relied to show that there was another Kanchan Singh son of Mangal Singh in the village. But from what I have stated above, it is clear that fact cannot be believed or taken as proved. The existence of a second Kanchan Singh was for the first time introduced by the defendants during the stage of evidence after the entries in the death registers (Exts. 9 and 9(a)) were proved by the plaintiffs, but the defendant has failed to prove that. The trial Court has not discussed this aspect of the case with reference to the defendant's evidence on whom lay the burden or onus of rebuttal by proof of the existence of another Kanchan Singh. It only stated in paragraph 35 of its judgment that the defendants had also adduced evidence that there was other Kanchan Singh son of Mangal Singh in village Bhagatpur. I have already observed that the defendant's attempt to connect the plaintiffs 1 to 5 with the other Kanchan Singh was not permissible in view of the written statement and the defendant, in his own sworn testimony, gave a direct lie to that attempt. With this background we have, therefore, to proceed to examine if the plaintiffs' case that the plaintiffs 1 to 5 were sons of Kanchan Singh (son of Jagmohan Singh) through his second married wife Mt. Churia can be accepted on the evidence and the surrounding circumstances.

10. The defendants' case both in the written statement and in evidence, as rightly pointed out in paragraphs 34 and 37 of the trial Court's judgment, was that Kanchan Singh (herefrom unless otherwise indicated, Kanchan Singh will mean Kanchan Singh son of Jagmohan Singh) had connection with the mother of the plaintiffs 1 to 5. They of course said that it was an illicit connection. Plaintiffs' case was that their mothei (mother of plaintiffs 1 to 5) was the second married wife of Kanchan Singh. In this connection plaintiffs proved two entries in the death registers of 1947 which were marked as Exts. 9 and 9(a). The former one shows that Mt. Churia, widow of Kanchan Singh of Bhagatpur, aged over 60 years died on the 12th of February 1947. This entry was made on the 26th of February of that year against serial No. 199 and one Raghubir Paban was shown as the informant. His number, as he was admittedly the chaukidar of the village (D.W 19's evidence) was stated to be 9/4. Ext. 9(a) is a similar entry on the 2nd of July 1947 stating that Sonbanti widow of Kanchan Singh of Bhagatpur over 60 years of age died on the 26th of June 1947. The informant was the same 9/4 Raghubir. Defendant admitted that Ext. 9(a) related to the death of the widow of Kanchan Singh from whom defendant No. 1 and his sister were born. After the rejection of the belated story of another Kanchan Singh in the same village at the relevant time, the entry. Ext. 9, becomes an important and unimpeachable supporting evidence for the plaintiffs' case. The trial Court dismissed this exhibit almost summarily by saying that the defendants had also adduced evidence about another Kanchan Singh son of Mangal Singh, and in that view there is nothing to show in Ext. 9 that Kanchan Singh mentioned therein was son of Jagmohan Singh. I must say that the most important link in this connection, namely, the admission of the defendant about the entry. Ext. 9(a) relating to defendant No. 1's mother was neither kept in view nor taken into proper consideration by the Court below. One more comment of the Trial Judge was that the plaintiffs did not examine the chaukidar on whose information Ext. 9 was prepared, and, therefore, which Kanchan Singh was referred to therein could not be ascertained. I have ruled out the possibility of another Kanchan Singh. So the only Kanchan Singh referred to either in Ext. 9(a) (which was admitted) or in Ext. 9 must be taken to refer to one and the same Kanchan Singh. Kanchan Singh of Ext. 9(a) was the father of defendant No. 1 as admitted on the defendant's side. Therefore, Kanchan Singh in Ext. 9 must relate to him. In that view Churia, another widow of Kanchan Singh died on the 12th of February 1947 about five months before the death of the other widow, Sonabanti, of Kanchan Singh.

11. It appears that the written statement alleging that plaintiffs 1 to 5 were not the legitimate sons of Kanchan Singh and that Kanchan Singh had not married second time, was filed on the 21st of June 1955. That must have set the plaintiffs on tracing some reliable evidence to dispel the defendant's story. On the 7th of July 1955, they applied for certified copies of the entries in the death registers and obtained the same on the 13th. Both the certified copies were filed in Court on the 26th July 1956. Evidence on the side of the plaintiffs closed on the 10th of December 1958 and on the defendant's side on the 18th of December 1958. On that day the entries of the death registers were marked as Exts. 9 and 9(a). The originals were before the Court. They were public documents and admissible under Section 35 of the Evidence Act. The ground of reception of such evidence is that it is the public duty of a person who keeps the register to make such entries after satisfying himself of the truth. When it is the duty of a public servant to make such entries in any public or official register, it becomes admissible to prove the truth of facts entered as well as the fact that the entries were made by the officer. Entries in a register of birth, death or marriage are at least prima facie though they may not be always conclusive evidence. It is not necessary to prove who made the entries and what was the source of his information — see Dasi Ram v. Emperor, AIR 1947 All 429. Where the dates of death of two persons came under consideration with a view to finding which of them died early, the Madias High Court held, with reference to death register, that in ordinary circumstances that was bound to be accepted as conclusive — see the case of Rangappa v. Rangaswami, AIR 1925 Mad 1005. Wort, J. of this Court also held about an entry in birth register that it was evidence and conclusive evidence of the age of the person concerned unless disproved by the evidence of the witnesses of the party denying the correctness of it (See Nanhak Lal… v. Baijnath Agarwala…Opposite Party., AIR 1935 Pat 474). The expectation of further evidence from the informant, was not warranted for reliance upon Exhibit 9 or Exhibit 9(a). The Chaukidar, Raghubir, was, however, summoned in this case by the defendants as stated by D.W 19, but he did not appear. No doubt, identity of the person whose birth and death is entered has to be established by other evidence if that is in dispute. In that case, the informant, if available, will be a competent witness. Other kind of evidence may also be led to identify the person. In the present case, the admission on the side of the defendants about the identity of Kanchan Singh mentioned as husband of the deceased in Exhibit 9(a) and the failure to prove of another Kanchan Singh in the village, supply unmistakable identity of Kanchan Singh in Ext. 9. The description of Churia as widow of Kanchan Singh in Exhibit 9 can be accepted. The whole entry, which is admissible under Section 35 of the Evidence Act, need not conform to the special provisions of Section 32(5) or Section 50 of that Act. Relevancy of an evidence can be established under any of those three sections.

12. Then will come the manner of proof. The contents of a public document can be proved by direct or secondary evidence and that has been done in this case. This entry (Exhibit 9) in the death register which was made in 1947 long before the suit by a public servant in the discharge of official and public duties, resembling an admitted entry of similar nature in Exhibit 9(a) of the same year is a strong piece of evidence in support of the plaintiffs' case that Kanchan Singh had two wives. The burden of proof in this respect was originally on the plaintiffs and that was sufficiently discharged by Ext. 9 read with Ext. 9(a), apart from the oral evidence. Even if the oral evidence is not found sufficient or satisfactory on this point, Exts. 9 and 9(a) would be enough, in my opinion, to discharge that onus and to call for rebuttal from the defendants. The trial Court failed to give proper consideration to these two important exhibits, with defendant's acceptance of at least one of them. It will be worthy of note that according to the evidence on the defendant's side, taking two wives is not completely strange to their family. D.W 8, a man of 70 years of the same caste as the defendants and of the same village stated that Rajendra Babu, defendant No. 3 (son of original defendant No. 1, Baikunth) has two wives. He is 50 years old and took a second wife 10 to 12 years before. His first marriage was about 18 years ago. The witness, of course, added that his first wife was of ill-health and had no issue. But the second marriage came within six years of the first marriage, certainly before any reasonable despair about progeny. Marriage of two wives was neither uncommon nor slanderous in this family. Particularly in late nineties of the last century when Kanchan is alleged to have married for the second time, this practice was not considered unorthodox in the country. That Mosst. Churia was a genuine Bhumidhar and she died five months before the grandmother of defendant 2 (i.e, Kanchan's 1st wife) was admitted by the deposing defendant (D.W 19). It is significant to notice that he (D.W 19) admitted that he looked after the case after the death of his father, original defendant No. 1 (in 1956) and he had told his lawyer after the death registers were filed (26-7-1956) that Mt. Churia was the wife of other person. I have already discussed sufficiently about the improbability of Mt. Churia of Ext. 9 to be the widow of another Kanchan Singh.

13. It was commented on behalf of the respondents that the plaintiffs did not disclose in the plaint either the name of their mother or the date or the year or the time of the second marriage of Kanchan Singh or the village where such marriage took place. When in the written statement the second marriage was denied the plaintiffs did not, it was complained, amend their plaint by giving these informations. They deferred those informations till the stage of evidence and till after they chanced to get semblance of support from an entry in the death register of 1947. On reading the plaint as a whole, one does not feel that the plaintiffs had any suspicion aboutany challenge to the second marriage of Kanchan Singh or plaintiffs' paternity. When the written statement disclosed such a defence, the plaintiffs within about 20 days collected supporting evidence in their favour from the death registers and brought it before the Court more than two and a half years prior to the trial. In the list of documents filed in Court on their behalf they had mentioned that the death register entry was about Mt. Churia, wife of Kanchan Singh D.W 19 admitted to have received a copy of the list of documents in which such mention was made. They perhaps attempted to counteract those entries in some manner through the evidence of the chaukidar but they failed to bring him to Court. May be, the chaukidar, though summoned by the defendants, did not choose to detract from what he had contributed to those entries. Learned Counsel for the respondents referred us to two decisions — Hemanta Kumar Das v. Alliantz Und Stuttgarter Life Insurance Co. Ltd., AIR 1938 Cal 120 and Biseswar Misra v. The King, AIR 1949 Orissa 22 to contend that Exts. 9 and 9(a) could not be used in support of the plaintiff's case about Kanchan Singh's second marriage. In the former case a certified extract from the register of death and another certified extract from the register of birth were proved. They were about the death of the wife and the birth of a daughter of one Noot Bihari Das, of 97-2-1 Baranoshi Ghosh Street Calcutta. On the basis of those entries the defendants wanted to suggest that Noot Bihari who was an insurance policy holder could not have been of the age as he had stated in his policy. Dealing with those entries Lort William, J. of the Calcutta High Court observed that they could not be accepted without evidence of identification and were not sufficient in law, without such evidence of identification, to establish the defendants' case. The latter case related to a, birth certificate of a girl. The contest was if that girl was lawfully married wife of P.W 1 of that case and, there, fore if P.W 1 was her legal guardian. The lower Court had found on evidence of the witness that she was the married wife of P.W 1. In the High Court it was urged that there was no clear and definite evidence that the girl was below 16 years of age and the birth certificate was contended not to be evidence of the age of the girl as there was no evidence connecting the entry in the birth register with that particular girl. Jagannadhadas, J., as he then was, observed that the birth certificate was no proof of age of any particular person unless that entry is connected with individual concerned. But in that case there was ample other evidence about the age of the girl which the Court accepted. I have already observed that the identity of the person in respect of whom an entry is made in the death or birth register has to be shown and that can be either by direct evidence from the informant who made such entry or by other evidence including circumstantial evidence. In the present case I have dealt with that aspect. The objection of learned Counsel for the respondents is not of any substance.

14. In a contest of present nature, oral evidence is difficult to act upon. Second marriage took place long long ago. Plaintiff No. 1, who died at the age of 55 or 60 years might have been of assistance one way or other with informations known to him during his childhood. The second wife who would have been a competent witness is also dead eight years before the suit. Direct evidence of persons who could have seen or attended the marriage cannot be expected at such remote date. In such circumstances, documentary evidence is more dependable and one such evidence will be preferred to a mass of oral evidence, whichever oral evidence gains corroboration from such document will be preferable. Exts. 9 and 9(a) have, therefore, great significance and importance in the present case.

15. (After discussion of evidence, on this point the Judgment proceeded): Considering all the evidence, I have no hesitation in my mind that the plaintiffs 1 to 5 are the legitimate sons of Kanchan Singh. The finding of the trial Court on this question was erroneous and imperfect as it failed to take into account in proper perspective the documentary evidence adduced on the side of the plaintiffs which was more decisive than the oral statements of the witnesses on the defendants' side.

16. The next question that falls for consideration is, if the plaintiffs had joint possession and title with the defendants over the suit properties. The answer to that will depend upon the nature of the properties, that is to say, whether the properties are joint family properties of the family consisting of Kanchan Singh and his sons. Properties sought to be partitioned were scheduled to the plaint. Schedule ??? described 94 bighas 12 kathas and 4 dhurs of raiyati lands situate in mouza Bhagatpur bearing touzi No. 1156, 8 bighas 4 kathas and 7 dhurs in village Bhagatpur Diana and Pahaipur in the same tauzi, and 18 bighas 15 kathas and 7 dhurs of raiyati kaimi ??? land situate in village Shahpur under tauzi No. 632. The total of this schedule came to 121 bighas 11 kathas and 18 dhurs. Usufructuary and simple mortgage bonds were also detailed which the plaintiffs sought to be included in partition. The residential house at village Bhagatpur under khata No. 118.K bearing survey plot Nos. 411 and 418 was also included. Proprietary interest in tauzis 729, 4277, 4280, 6987 and 6985 were also included. In Schedule 1-Kha 5 bighas 11 kathas 12 dhurs of raiyati kaimi jot lands at mouza Bhagatpur under tauzi No. 1156 khata No. 19 were also mentioned and they were described as selfacquired property of Babu Kanchan Singh. Another 10 bighas 5 kathas 10 dhurs of Kaimi jot lands in the same village were given in Schedule 2 which were claimed to be under the cultivation of the plaintiffs.

17. In answer, the defendant in paragraph 12 of his written statement stated that in a private partition by metes and bounds evidenced by a document of the 10th January 1930 “this defendant entered into separate possession and occupation of the khas property, sought to be partitioned, and other properties……… and his name was entered in the office of the Government and the proprietors in respect of the tauzis and raiyati lands etc.” Nothing more specific was stated about the plaint Schedule 1 properties. In paragraph 13 the defendant stated that Schedule Kha lanus (Schedule 1-Kha) were sold by auction on account of arrears of rent and Jamuna Prasad Singh purchased it out of his own private funds and those lands were in his possession. Neither the plaintiffs nor any of the defendants had any concern with that. About Schedule 2 lands of the plaint, the defendant said in paragraph 14 that the lands under khata No. 118 Ka (that is, survey plots 366 and 376 measuring 1 bigha 19 kathas 13 dhurs and 2 bighas 16 kathas, respectively) were allotted to the defendant's share in partition and were in his possession. Lands under khata No. 19 in that schedule were said to be in the possession of Jamuna Prasad Singh. About the residential house, the defendant stated in paragraph 23 that the plaintiffs had no concern with or possession over it, and that the house of the plaintiffs was separate from the house of the defendants and stood on another land. In paragraph 24, the defendant raised the plea of adverse possession against the plaintiffs saying:

“The possession and occupation of the defendants ever the above property, sought to be partitioned, has been continuing openly and peacefully for the last several twelve years to the knowledge of the plaintiffs and the defendants have acquired absolute title and right of adverse possession”.

18. From all that I have stated above from the written statement, it will be clear that the defendant's case was that all the suit properties belonged to the larger joint family consisting of Jagmohan Singh, Bansi Singh and Chandi Singh and came to the share of the defendants who belong to Jagmohan's branch through Kanchan Singh. There was no plea of any separate acquisition by any of the defendants. On my finding that plaintiffs 1 to 5 were legitimate sons of Kanchan Singh, they with other plaintiffs were entitled to the suit properties with the defendants at the time when there was a partition among the three main branches in 1930. Ext. B is the partition deed. It is true that none of the plaintiffs was a party to that document. But that would not annihilate theii rights to the properties if their claim is not otherwise barred by limitation. That there was a partition among the three branches flowing from the common ancestor Dhana Singh in 1930 and the suit properties were given to one branch is admitted and if the plaintiffs belong to that branch, then they could claim partition of their legitimate shares from the defendants.

19. The partition deed (Ext. B) dated the 10th of January 1930 clearly stated in the opening paragraph that Jagmohan, Bansi and Chandi were full brothers and their sons and grandsons remained joint in mess and business, but as the work of cultivation could not be properly done on account of their remaining joint, a private partition was effected and jote, Kasht lands, zamindari etc., as per details given in that document were divided with effect from the 1st of Kartik 1336 FS. Defendants relied upon this document. Thus there can be no doubt that all the properties involved in the present suit were joint family properties of the three branches of the common ancestor Dhana Singh. Defendants urged that previous to this partition there was a deed of gift by Jagmohan Singh on the 12th of April 1906 in favour of the original defendant No. 1, Baikunth Naram brngh. This was marked as Ext. G. There it was also stated that the joint family of Dhana Singh had 8 to 10 bighas of land and Jagmohan earned by his own labour and medical practice large fortunes which were invested in acquiring properties through his two brothers Bansi Singh and Chandi Singh and all the properties thus acquired, both moveable and immoveable, debts and business dues from other persons “were declared to belong to all the three brothers in equal shares and all the moveable and immoveable properties have been in possession and occupation of all the three brothers”. This statement is an unmistakable proof of the blending of the several properties and acquisitions of Jagmohan with the joint family. Once the properties belonged to the joint family it could not be open to any member to exclude another who was a coparcener of the same, such as, Kanchan Singh. No doubt in the deed of gift in paragraph 2 Jagmohan Singh said that his only son Kanchan Singh was not a man of character and was not capable of managing property and business in a proper manner and he was carrying on business exclusively and separately and had no concern or connection with the property and business of Jagmohan. This indicates only the wrath and displeasure of the father with his son but it does not alter the position in law in regard to the son's right in the properties of the joint family including those which were blended with the joint family properties.

20. In paragraph 3 of that document the executant stated that Baikunth Narain Singh, his grandson (son of Kanchan Singh) was wise, intelligent and capable of management of the properties and business and the executant hoped that the properties would not be spoiled by him and with a view to saving the properties from destruction, the deed of gift was executed in favour of Baikunth Narain Singh. He further stated that after deducting two-third share in the properties belonging to his two brother, the executant constituted Baikunth Narain Singh as “absolute proprietor of the entire of Milkiat interests and properties detailed below belonging to ??? e.g, moveable and immoveable properties, debts covered by bonds, hundis, chithas, sudbhama lands, nami and benami and debts under bahi khata etc., due from the debtors and decretal money due from the judgment debtors, valued at Rs. 3995” and he made him (Baikunth Narain Singh) a “representative” and all the rights and interests which were enjoyed by him at that time or would have been enjoyed by him thereafter in respect of those properties were said to devolve upon Baikunth Narain Singh with effect from the date of the execution of the document. Such recitals do not make out a gift outright of one-third of the joint family properties existing at that time. If it purported to do so, that was invalid. No coparcener could make such alienation to the exclusion of other coparceners. May be, that Jagmohan being dissatisfied with his only son Kanchan Singh wanted the management of the properties to be with his grandson and to keep out Kanchan Singh from such management the document was executed. The properties involved in that document were the proportionate milkiat interests in the tauzi Nos. 632, 2664, 1168, 6987, 2865, 4280 and 4277 and no other kasht land or moveable properties or debts due from others. The admitted ancestral property of 8 to 10 bighas and other blended properties of the family were not included in this document. The joint family was thus left with properties in which Kanchan Singh and the descendants through him as coparceners had their legitimate shares. I should mention here that though 7 tauzis were referred in Ext. G, the deed of gift, they were all treated as belonging to the joint family because they became the subject of division in the family partition of 1930 and three out of those seven tauzis were wholesale given to the share of Kanchan Singh's descendants. If one-third of these seven tauzis were to be the separate property by the gift of Baikunth Narain Singh, they could not have formed the divisible joint family property in 1929 or 1930. Neither Jagmohan had any legal right to make a gift as he purported to do under Ext. G, nor that gift was really acted upon. The tauzis have already vested in the State of Bihar under the Bihar Land Reforms Act and can no longer be the subject of partition. The other raiyati lands mentioned in the different schedules of the plaint were not the subject-matter of the gift and were unmistakably, as is evident from Ext. B, the deed of partition, properties belonging to the joint family and came to the share of one branch. The deed of gift, therefore, does not come in the way of the plaintiffs. So also the deed of partition (Ext. B).

21. Defendants' strongest challenge against the plaintiffs was the plea of limitation or adverse possession. They sought to make out that they were in exclusive possession of the suit properties at least from 1930 continuously and the plaintiff were kept out of possession and appropriation of any profit therefrom. On that account, they pressed that even if the plaintiffs had any title to some share in the suit properties, that was extinguished long since and the defendants' title thereto had matured to a perfect one which could not be assailed in the present suit. The trial Court accepted this version against the plaintiffs. On the question of possession, the trial Court's approach was defective. In paragraph 27 of the judgment it observed that if it was to be found that the plaintiffs were not in possession of the suit lands, that would go a long way to indicate that they were not the descendants of Kanchan Singh through his legally married wife. This approach might have been a circumstantial examination on the question of parentage of the plaintiffs but not a correct approach on the plea of adverse possession against the plaintiffs. Similarly, in paragraph 49 of the judgment the trial Court posed a question whether Kanchan Singh had ever come in possession of the suit lands and other lands which were in possession of Jagmohan, Bansi and Chandi and it proceeded to scrutinise the evidence for a conclusion. This again was an equally defective approach. I have noticed that the trial Judge in paragraph 66 apprised himself of the principle laid down in P. Lakshmi Reddy v. L. Lakshmi Reddy, (S) AIR 1957 SC 314 but he completely missed the essential point when he stated:

“Thus all that the law requires that a cosharer or co-heir in order to acquire title by adverse possession must show that he is in exclusive possession of the lands to the knowledge of the cosharer.”

22. The entire decision in the lower Court has been vitiated by the erroneous impression of the position in law in regard to the possession of one cosharer when some other cosharer is out of possession. In the case referred to, it was very eloquently laid down that “for a proof of adverse possession of one co-heir as against another, it was “not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” This open assertion of hostile title to the knowledge of the other is the essential element of a plea of adverse possessor by one co-heir against another. That may be by an express demand by one co-heir in respect of his title or right to appropriate profits of the joint family property and denial by the other. It may also to inferred from the proved fact that a coheir took and maintained notorious exclusive possession in assertion of hostile title and continued in such possession for a considerable time and the excluded heir took no steps to vindicate his title. This latter circumstance has to be scrutinised very carefully before such an inference about assertion of hostile title and possession in confirmation of such assertion can be inferred against the co-heir. In the same decision, the Supreme Court, with reference to this class of circumstances, observed:

“Whether that line of cases is right or wrong we need cot pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal, AIR 1919 PC 44 at p. 47 quotes, apparently with approval, a passage from Culley v. Doe d. Taylerson, (1840) 3 P. and D. 539 : 52 RR 566 which indicates that such a situation may well lead to an inference of ouster ‘if other circumstances concur’. See also Govindrao v. Rajabai, AIR 1931 PC 48. It may be further mentioned that it is well settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.”

23. In appeal from Cylon, the Privy Council in Charles Edward Victor Seneviratne Cores v. Mahatantrigey Iseris Appuhamy, 1912 AC 230, where one of four coparcener by descent entered on possession of the property in suit in 1878 and settled the game on his son in 1907, held that in a salt for partition by the assignee of the other coparceners the defendant's possession, unless there was dear evident to the contrary, must be referred to the title by descent and enured for the benefits of the co-heirs. This view was referred with approval in the above Supreme Court decision also and that view has often been quoted by almost air the High Courts while dealing with a cosharer's exclusive possession. The basis of that view as drains from Thomas v. Thomas, (1855) 2 K and J 79 whew it was said that possession is never considered adverse if it can be referred to a lawful title.

24. In the case of Suraj Prasad v. Ramcharitar Singh, AIR 1950 Pat 298 Reuben, J. with whom Jamuar, J. concurred, observed in dealing with the question of possession of one co-owner to the exclusion of the other:

“It is well established that uninterrupted sole possession by one co-owner of undivided property doe? not by itself amount to ouster of his co-owners and is not sufficient ta establish his adverse possession against them, and that his possession will be referred to his lawful title as a co-owner and will be taken to be the possession of his co-owners.”

25. Several decisions of the Privy Council and Calcutta, High Court were referred in that judgment in support of that view. The same was the opinion of the Madras High Court in Lakshminarasamma v. Rama Brahmam, AIR 1950 Mad 680.

26. In the present case the finding of the Court below has been that the defendants have been in possession of the suit properties and the plaintiffs have not taken any profits therefrom. This position continued at least from the family partition in 1930, for 25 years till the suit was instituted on the 24th of January 1955. Previous to that, there could be no question of defendants' exclusive possession as against the plaintiffs, because the suit properties along with other properties of the family were the joint properties of the three branches belonging to the common ancestor Dhana Singh. Non-possession or non-participation in the profits of the properties by the plaintiffs, by itself, will not amount to an annihilation of their joint title as co-sharers or coparceners. When the defendants asserted a plea of title by adverse possession, the onus was entirely on them to establish not merely their exclusive possession but what is more important, their open assertion of a hostile title or denial of title of the plaintiffs and that again, to the knowledge of the plaintiffs. The trial Court should have scrutinised the defendants' evidence from this angle but it did not do so. Before Article 144 of the Limitation Act can apply against the plaintiffs, the defendants have to show that their possession had become adverse to the plaintiffs for 12 years or more. I need not refer to the evidence on the plaintiffs' side about their possession nor to that on the defendants' side about their exclusive and continuous possession of the suit properties because the trial Court's finding in this respect was not seriously contested by the appellants except referring us to a meagre evidence of the deposing plaintiff that he was getting 100 maunds of grains every year from the defendants which was not corroborated by any other witness or any circumstance.

27. Learned Counsel for the defendants argued that a continuous exclusive possession for a number of years without any demur from the plaintiffs or any action by them to interrupt such possession or ta claim their rights to the usufructs of the properties will be enough to raise an inference of ouster of the plaintiffs by the defendants. It possession dates back to a time beyond living memory or if it becomes impossible to prove by direct, evidence that the original co-owner had knowledge of the denial of the title and the attendant circumstances have been in accord therewith, there may be a presumption of ouster. In the present case, the position is different when the primary parties were alive when the suit was brought to Court. Though original defendant No. 1 died by the time the trial came to the stage of recording evidence, defendant No. 2, 42 years' old, came to depose and got, in his support, agnatic relations, as witnesses, of much older age. Plaintiff No. 1 was equally dead by that time and plaintiff No. 5, who examined himself, was of the same age as the defendant No. 2. Ouster or assertion of hostile title by the defendants to the knowledge of the plaintiffs could have been proved by some direct evidence. Defendants relied upon some circumstances to support their claim. Mere exclusive possession is not an overt act to oust the title of other cosharers. It was argued that the plaintiffs were living in the same village next to the house of the defendants and saw before their own eyes that the defendants were taking all the benefits of the family properties. But a non-diligent cosharer is not always bound to suffer. As was observed by Chief Justice Marshall in M'Clung v. Ross, (United States S.C Reports, (1820) 5 Wheaton 116):

“That one tenant in common may oust his co-tenant and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession.”.

28. Another circumstance which was stressed upon was that revenue chalans (Exts. R series), decrees (Exts. M series), sale certificates (Ext. L series) and rent receipts (Exts. A series) show a challenge to the plaintiffs' title, if any, about the suit properties because they were in no way party to any of those documents although the defendants were. The trial Court also referred to these documents and took them for the same purpose. This was wrong. The revenue chalans (Exts. R series) are proof of the fact that Baikunth Narain Singh and other cosharers paid revenue and cess for the tauzis which were mentioned in the deed of gift (Ext. G). I have held that all these tauzis were treated as joint family properties though they might have been acquired out of the earnings of Jagmohan Singh. Whatever the position might have been in regard to these tauzis previous to 1929, all of them were again treated as belonging to the joint family and came to be divided not in the shares evidenced by the previous deed of gift. The trial Court referred to these chalans with a view to supporting its conclusion that following the deed of gift Kanchan Singh was kept out of any concern with these tauzis. That to my mind is irrelevant. Whether Kanchan Singh was in actual possession of all or any of the joint family properties is immaterial because the plaintiffs by their birth, as the legitimate sons of Kanchan Singh, in their own rights were entitled to their shares in the family properties. The decrees in suits (Exts. M series) were all prior to 1929 excepting Exts. M/3, in and M/2 which were of the years 1932, 1934 and 1938, respectively. M/3 is an appellate Court decree arising out of a money suit. Defendants are shown as respondents first party in that. Ext. M is a decree in a mortgage suit No. 96 of 1930 dated the 22nd December 1934 which the defendants were the plaintiffs. The suit was for a claim of Rs. 553-10-9 which remained outstanding after auction sale of the mortgaged property against the defendants. M/2 is a decree in money suit No. 108 of 1937 dated the 2nd February 1938 in which the defendant No. 1 was defendant. The claim was for Rs. 2108 and odd. The suit was decreed for a part of that with interest. None of these three decrees is in any way relevant to prove the defendants' open hostile title against the plaintiffs regarding the properties in question. The trial Court also did not refer to these documents. The other exhibits of in series which were prior to 1929 only show that the rent suits were brought in the name of all the three branches of the common ancestor and one of them was represented by Baikunth Narain Singh. Neither the plaintiffs' knowledge of the manner in which those suits were brought, nor anything therein to deny the plaintiffs' rights is apparent from them. There is no other evidence about that also. Baikunth Narain Singh was the eldest of the sons of Kanchan Singh. Following the deed of gift, Baikunth's name was naturally to be recorded as a joint proprietor with the other two branches in respect of the tauzis. The tauzis were purchased in the joint names of the three brothers Jagmohan, Bansi and Chandi and the deed of gift purported to make Baikunth as the “representative” of Jagmohan. In that view rent suits in their names were not extraordinary. Sale certificates (Exts. L series) show that raiyati lands were purchased in the names of Baikunth, Bansai Chandi and Mod Narain. It is not the defendants' case that these were self-acquired properties. They were all considered as joint family properties at the time of family partition. In which of the names of the coparceners the property was purchased was immaterial. Sale deeds (Ext. D series) similarly show purchases of properties in the name of one or more of the members of the family. Plaintiffs do not figure there. Rent receipts (Exts. A/115 to A/120, A/139 and A/140) go to show that between 1331 to 1337 Mod Narain Singh paid rents for 3 bighas of land and receipt was taken in Baikunth's name. They (except A/120) are all prior to the deed of partition and therefore of neutral significance. None of the documents referred to above can be taken as a proof of any assertion of a hostile title to the knowledge of the plaintiffs. Exts. C was a deed of exchange of the year X947 which was filed to prove that 19 kathas 16 dhurs of land bearing survey plot No. 116 was exchanged with one Banarsi Singh and in that document the plaintiffs were not the exchangers though other members of the family executed the same. The plaintiffs have included that property in the plaint schedule which shows that either they were not aware of the exchange or they did not admit it. If the defendants will be taken to have asserted their rights to the exclusion of the plaintiffs to the property involved in that exchange, there is nothing to show that they did so to the knowledge of the plaintiffs. Besides, the suit was instituted within 12 years of that.

29. In a case where a husband died in 1915, leaving two widows and a suit was brought by one of the widows for partition in 1950, before which a transfer by sale of some property by the other widow in 1944 had taken place, their Lordships of the Andhra High Court in Jadho Nagu Bai v. Jadho Gangn Bai, AIR 1958 Andh Pra 19 held that the possession of the defendant widow was referable to her joint title and non-participation of the profits by the plaintiff widow did not amount to any ouster. The plaintiff had remained out of possession or participation for 35 years before she came to Court. The entire mass of oral evidence on the defendant's side was devoted to assert that Kanchan Singh or the plaintiffs were not in actual possession of the suit properties; nothing more than that was proved. One of the plaintiffs' witnesses (P.W 6), no doubt, stated that he had seen the suit lands situate in the village and the plaintiffs in separate possession of 10 bighas of land, while Baikunth (defendant No. 1) was in possession of other lands. Baikunth Singh “does not allow him (plaintiff) to cultivate remaining lands.” To me, this statement only admits possession of the defendants but not any demand of title or rights from the plaintiffs' side which was denied by the defendants. Absence of any assertion of a hostile title by the defendants or an open denial of the plaintiffs' title has pruned of any adverse character from the exclusive possession of most or all of the suit properties by the defendants.

30. Some arguments were advanced on either side before us about the position of the house where the plaintiffs admittedly live. The plaintiffs claimed that it was immediately adjacent to the house where the defendants live and on account of separation in mess, a common courtyard belonging to the two houses was walled in the middle. The defendants wanted to show that it was not one house which had been divided into two parts but the plaintiffs' house was an entirely different unit by itself. This question has no material bearing upon the case. I have proceeded on the basis that the defendants have been in actual possession of the suit properties. Plaintiffs' claim of their possession over 10 bighas 5 kathas 10 dhurs of land, as given in Schedule 2 of the plaint, need not be also closely examined. Parties were varient about that also. Since the plaintiffs have been held to be the legitimate descendants of Kanchan Singh with the defendants and the plea of adverse possession against them has not been established, they are entitled to five-sixth share of the suit properties. In that view, the judgment and decree of the trial Court will be set aside and a preliminary decree for partition of five-sixth share will be passed; but as no proof was given of the existence of the simple and usufructuary mortgage bonds, learned Counsel for the plaintiffs conceded that they cannot form the subject of partition. The proprietary interest in the different tauzis mentioned in the plaint schedule having already vested id the State of Bihar, they will also be excluded from partition except such lands that were in Khas possession of one or other coparceners at the time of vesting. Defendants claimed that survey plots 572, 1331, 1332, 1510, 1520 and 1637 under khata No. 19 in village Bhagatpur (which were given in Schedule 2 of the plaint) were not in possession of either of the parties; they were purchased by Jamuna Singh in 1911. Whatever may be those lands should be allotted to the plaintiffs' share since they claimed them to be in existence for partition. In view of the relationship between the parties and in view of the fact that the plaintiffs delayed in coming to Court, both the parties will bear their own costs throughout in this case. In making a division of the houses and homestead lands the pleader commissioner will keep in view the actual residential possession of the parties so as not to cause any inconvenience to them, as far as possible. The appeal is thus allowed in part.

Tarkeshwar Nath, J.:— I agree.

DH/K.S.B

31. Appeal partly allowed.