BIRLA SINGH Vs. JALESHWAR SINGH

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for partition of half share in the properties described in the plaint.

(2.) The case of the plaintiffs was that one Ramdhayan Singh had two sons; Achaibar Singh and Biteshwar Singh. Achibar Singh had two sons; Achuta Singh and Hitan Singh. Achuta Singh himself had two sons; Pradip Singh and Chandrika Singh. Pradip had a son Ram-asis Singh. Biteshar Singh had two sons; Mithoo Singh and Nanhku Singh. Mithoo Singh had one son Jainath Singh, and the latter has two sons, that is Jaleshwar Singh and Girwardhari Singh (the two plaintiffs in this case). Nanhku Singh left no issue and his line became extinct. Hitna Singh had a son Basudeo Singh, and the line of Basudeo Singh also became extinct. Chandrika Singh died as a bachelor Achaibar Singh and Biteshar Singh were separate in mess, business and property. Achuta Singh and Hitan Singh were members of a ioint family, and the latter died leaving Basudeo Singh as his son. After the death of Basudeo Singh, his share devolved on Pradip Singh. As already stated, Achuta Singh died leaving his two sons; Pradip Singh and Chandrika Singh, and after the death of Chandrika Singh, his share devolved upon Pradip Singh. In this manner Pradip Singh became the full owner of the properties which at one time belonged to Hitan Singh and Chandrika Singh. Pradip Singh died on 28-8-1956. leaving his widow Sheolochan Kuer, who was originally defendant No. 5 in the suit, and a son Ramasis Singh. Ramasis Singh also died in the same year, that is. on 24-12-1956, leaving his widow Saraswati Devi, defendant No. 6. Defendants 5 and 6 came in possession of the properties of Pradip Singh after his death. Those two defendants ft and 6 cultivated the lands jointly by a private arrangement between them and the crops used to be divided half and half. Sheolochan Kuer (defendant No. 5) executed a deed of gift dated 6-6-1958 in favour of the plaintiffs in respect of the properties described in the plaint and registered the said deed of gift, and since then the plaintiffs came in joint possession of those lands with defendant No. 6. Defendant No. 6 executed certain sale deeds in respect of some of those lands in favour of defendants 1 to 4. The share of defendant No. 5 was half and that of defendant No. 6 the other half. By virtue of the deed of gift the plaintiffs had half share, which at one time belonged to defendant No. 5. The plaintiffs asked defendants 1 to 4 and 6 to divide their share, but they refused, and hence the plaintiffs instituted this suit, giving rise to this appeal, for partition of their half share. The plaintiffs valued the suit at Rs. 10,000/-. but paid the fixed court-fee of Rs. 22/8/-.

(3.) Defendant No. 5 at first filed a written statement admitting the case of the plaintiffs, but later on she filed another written statement supporting the case of defendants 1 to 4. She, however, died in December, 1959, and then Saraswati Debi's two daughters Krishna Kumari and Indu alias Janak Dulari were substituted as heirs and impleaded as defendants 5 and 5(a) respectively. Defendants 1, 3, 4 and 6 filed a joint written statement contesting the suit of the plaintiffs on grounds, inter alia, that the genealogical table given by the plaintiffs was wrong in material aspects and the plaintiffs had acquired no title at all by the deed of gift in their 'favour. According to them, Sheolochan Kuer (defendant No. 5) was the widow of Basudeo Singh, and not of Pradip Singh. Pradip Singh was married to Rarnrati Kuei, who had already predeceased Pradip Singh, and on the death of Pradip Singh it was Ramasis Singh who came in possession of all the properties as the sole survivor of his family. Ramasis Singh died leaving behind his widow Saraswati Debi (defendant No. 6) and two daughters, Krishna Kumari and Janak Dulari. and they all inherited the estate of Ramasis Singh Basudeo Singh died in a state of jointnest with Pradip Singh and Chandrika Singh Sheolochan Kuer (defendant No 5) had only a right of maintenance, and as such she was not at all competent to execute the deed of gift in favour of the plaintiffs. Their further plea was that the suit was in reality a suit for declaration of title and recovery of possession, and as such it was incumbent on the plaintiffs to pay ad valorem court-fee on the value of the properties which would not be less than Rs 30,000/-. Their written statement further disclosed that defendant No. 6 sold the properties, described in Schedule 1 of the written statement to defendants 1 to 4 by four sale deeds, all dated 3-7-1958, for legal necessity and those defendants were in possession of those properties. There was a formal written statement by the guardian-ad-litem of the minor defendant No. 2.