IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.169 of 2019
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1. Jituwa Mahto, S/o Late Pushu Mahto, aged about 60 years
2. Ledwa Mahto, S/o Late Dhanu Mahto, aged about 65 years
3. Paran Mahto, S/o Late Hari Mahto, aged about 70 years
4. Newal Mahto, S/o Late Jhari Mahto, aged about 70 years
5. Panchu Mahto, S/o Late Jhari Mahto, aged about 65 years
6. Ranjeet Mahto, S/o Late Sukar Mahto, aged about 40 years
7. Tirath Nath Mahto, S/o Late Daso Mahto, aged about 40 years
8. Baju Mahto, S/o Late Dasai Mahto, aged about 55 years
All are resident of Village Chokad, P.O. Maganpur, P.S. Gola,
District –Ramgarh (Jharkhand), Present resident of village Sotai,
P.O. –Bariatu, P.S. –Gola, District –Ramgarh, (Jharkhand)
9. Sonia Devi, W/o Late Bihari Mahto, aged about 65 years
10. Panko Devi, W/o Bihari Mahto, aged about 42 years
Both are resident of village –Sotai, P.O. –Bariatu, P.S. –Gola,
District –Ramgarh (Jharkhand)
.... .... …. Appellants/Appellants/Defendants
Versus
1. Dinu Mahto, S/o Late Paras Mahto
2. Jhandu Mahto, S/o Late Rameshwar Mahto
3. Fekan Mahto, S/o Late Tula Ram Mahto
All are resident of village –Barki Koya, P.O. –Bariatu, P.S. –Gola,
District –Ramgarh (Jharkhand)
…. .... …. Respondents/Respondents/Plaintiffs
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For the Appellants : Mr. Manjul Prasad, Sr. Advocate
: Mr. Kundan Kr. Ambastha, Advocate
: Mr. Arbind Kr. Sinha, Advocate
: Mr. Baban Prasad, Advocate
: Mr. Akhouri Prakhar Sinha, Advocate
: Mr. Aniket Rohan, Advocate
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PRESENT
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellants.
2. This second appeal has been preferred under Section 100 of
Code of Civil Procedure against the judgment and decree of
concurrence dated 15.02.2019 passed by the learned District Judge-
III, Ramgarh in Civil Appeal No.09 of 2018 whereby and where
under, the learned first appellate court has dismissed the appeal on
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contest and upheld the judgment and decree passed by the learned
trial court being the Civil Judge (Senior Division)-III, Ramarh in
Partition Suit No. 124 of 2008 dated 31.03.2018.
3. The brief fact of the case is that the plaintiff-respondents
filed Partition Suit No. 124 of 2008 in the court of Civil Judge
(Senior Division)-III, Ramgarh with a prayer for a decree for
partition of the plaintiffs 12 Annas share in Khata No. 7, 8 Annas
share in Khata No. 5 of Schedule-B from the defendant no. 1 and 12
Annas in one share out of five shares of Schedule –C from all
defendants.
4. The case of the plaintiffs in brief is that Kawan Mahto was
the common ancestor of the parties to the suit. He has five sons
namely Juthan Mahto, Mitar Mahto, Kishun Mahto, Mithan Mahto
and Lutan Mahto. The parties to the suit are members of joint
Hindu family governed by Mitakshara School of Hindu Law. The
plaintiffs are the descendants of Lutan Mahto. The defendant no.1
is also the descendant of Lutan Mahto through his son Jeeva
Mahto. Lutan Mahto has two sons Jeeva Mahto and Laljee Mahto.
The defendant nos. 2 to 11 are the descendants of the four other
sons of Kawan Mahto namely Juthan Mahto, Mitar Mahto, Kishan
Mahto and Jogia Mahto. Though there was entry of separate
Kabajwari of the brothers and nephew of Juthan Mahto but Jeeva
Mahto and Laljee Mahto both sons of Lutan Mahto have been
cultivating plot no. 5, 7 & 8 jointly, hence separate Kabjawari has
been shown in their name in respect of the land mentioned in
Schedule –B of the plaint. Jeeva Mahto kept his daughter Lahsania
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Devi as Gharjamai to bring up his son Pushwa Mahto. Pushwa
Mahto died leaving behind his son Jeetwa Mahto. Lahsania Devi
and her sons Rameshwar Mahto, Tularam Mahto and Dinu Mahto
used to look after and serve Laljee Mahto, the brother of Jeeva
Mahto who was issueless. Jeetwa Mahto son of Pushwa Mahto is
unmarried and issueless and suffered from leprosy. Laljee Mahto
out of love and affection gave his entire property to Rameshwar
Mahto, Tularam Mahto and Dinu Mahto, sons of Lahsania Devi
vide registered deed of Will no. 21 dated 14.08.1961. The last rites
of Laljee Mahto was performed by the said three sons of Lahsania
Devi. The plaintiffs pleaded that no partition by metes and bounds
has taken place in respect of the lands of Khata No. 5, 7 & 8. As the
plaintiffs were informed that the defendant no.1 was intending to
sell and transfer some land illegally to the detriment of the
plaintiffs, hence the plaintiffs filed the suit for partition.
5. The defendants in their written statement challenged the
maintainability of the suit on various technical grounds. Further, it
was pleaded by the defendants that there is no unity of title and
possession in respect of the suit land between the plaintiffs and the
defendants. The defendants denied that the plaintiffs are the legal
representatives and descendants of Jeeva Mahto and Laljee Mahto.
The defendants next pleaded that Lahsania Devi in or about the
year 1940 went to her Sasural after her marriage and severed all
connection with her Naihar (parental house). It is next submitted
that the case of the plaintiffs is a cooked-up story and are all false.
The Will executed by Laljee Mahto has not been probated. There
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has been prior partition between the parties, hence the defendants
prayed for dismissal of the suit.
6. On the basis of rival pleadings of the parties, the learned
trial court settled the following six issues:-
(I) Is the suit maintainable in its present form?
(II) Whether the plaintiffs have got valid cause of action for
the suit?
(III) Is the suit barred by Law of Limitation and Adverse
Possession?
(IV) Is there any unity of title and possession of the parties
over the suit land?
(V) Is there jointness of parties over the suit property and
preliminary decree for partition of the plaintiffs 12 annas
share in Khata No. 7 and 8 annas share in Khata No.5 of
Schedule B land and 12 annas in one share out of five
share of Schedule C land be passed?
(VI) To what other relief or reliefs, plaintiffs are entitled for?
7. In support of his case, the plaintiffs examined altogether
four witnesses and proved the documents which have been
marked Ext. 1 to Ext.2/c. On the other hand from the side of the
defendants, the defendant examined altogether ten witnesses and
the defendants also proved the documents which were marked
Ext. A to Ext. A/10.
8. The learned trial court first took up issue nos. IV and V
together and after considering the evidence in the record came to
the conclusion that the plaintiffs have been able to prove that
Laljee Mahto executed Will vide deed no. 21 dated 14.08.1961 in
favour of Rameshwar Mahto, Tularam Mahto and Dinu Mahto
sons of Lahsania Devi out of love and affection. In the process, the
learned trial court relied upon the admission made by the D.W.4.
who is the defendant no.3 at para-18 of his cross-examination that
the sons of Lahsania were looking after Laljee Mahto. The learned
trial court also considered para-18 of the cross examination of the
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D.W.3 wherein he admitted that no partition took place by metes
and bounds. The defendants could not prove their plea that Laljee
Mahto died before 1961 i.e. the date of execution and registration
of the Will. The Will was marked Exhibit without objection and
was not challenged. The learned trial court also held that the
plaintiffs have succeeded in establishing that Jeeva Mahto after the
death of his wife brought Lahsania Devi and kept her as Gharjamai
to look after him and his son Pushwa Mahto and went on to hold
that the suit property is joint property of the parties and there is
unity of title and possession between the parties and thus the
plaintiffs are entitled for a preliminary decree of partition as
prayed for and answered the issue no. IV and V accordingly. The
learned trial court disposed of issue no. III as not pressed. Lastly,
the learned trial court took up issue nos. I, II & VI and held that the
suit is maintainable in its present form. The plaintiffs have valid
cause of action for the suit and that the plaintiffs are entitled to the
reliefs claimed by them and decreed the suit.
9. Being aggrieved by the judgment and decree passed by the
learned trial court, the defendants filed Civil Appeal No.9 of 2018
in the court of Principal District Judge, Ramgarh which was
ultimately heard and disposed of by the learned District Judge-III,
Ramgarh by the impugned judgment and decree.
10. The learned first appellate court on the basis of the materials
in the record and submissions made before it, formulated the
following point for determination:-
“Whether there is unity of title and possession of the parties
over the suit land and is there jointness of party over the suit
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property and secondly whether the plaintiffs are entitled for
partition with regard to 12 annas of share in Khata no.7 and
8 annas of share in Khata no.5 of schedule B land and 12
annas in one share of five share of schedule C land?”
11. The learned first appellate court made independent
appreciation of the evidence in the record and considering the
materials available in the record that the plaintiffs and the
defendants are of the same family and they have been cultivating
the suit property as per their Kabjawari and convenience and no
partition has ever been taken place by metes and bounds between
them; came to the conclusion that, there is unity of title and
possession of the parties in respect of the suit land. The learned
first appellate court also came to the finding that Laljee Mahto
executed a Will registered vide document no.21 dated 14.08.1961.
The learned first appellate court also came to the conclusion that
Laljee Mahto died issueless and went on to held that the plaintiffs
are entitled for a preliminary decree for partition of the suit land 12
annas share in Khata no.7, 8 annas share in Khata no. 5 from
Schedule B and 12 annas in one share out of five share of Schedule
C land and concurred with the finding of the learned trial court in
respect of issue nos. 4 & 5. The learned first appellate court also
concurred with the finding of the learned trial court on the other
issues and dismissed the appeal, upholding the judgment and
decree passed by the learned trial court.
12. It is submitted by the learned senior counsel for the
appellants that both the courts below could not appreciate the
evidence in the record in their right perspective and the findings of
both the courts below are perverse. It is further submitted by the
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learned senior counsel for the appellants that both the courts below
failed to consider that the Will having not been probated, the same
could not have been relied upon by the courts below for
establishing the rights of the plaintiffs through such Will in any
court of justice in view of the bar under Section 213 of the Indian
Succession Act, 1925. Hence, it is submitted that the Judgment and
decree passed by both the courts below set aside and the decree
passed by both the courts below be modified by allotting more
share to the defendant no.1 as a natural heir of Laljee Mahto also.
13. Having heard the submissions made at the Bar and after
carefully going through the materials in the record, it is pertinent
to mention here that both the courts below have relied upon the
Judgment of Hon’ble Madras High Court in the case of
Lalithammal Vs. T. Mohan Das, reported in 2007 0 Supreme
(Mad) 844 wherein the Hon’ble Madras High Court has considered
Section 213 along with Section 57 of the Indian Succession Act,
1925. It is pertinent to refer to Section 213 of the Indian Succession
Act, 1955 which reads as under:-
“213. Right as executor or legatee when established.—(1)
No right as executor or legatee can be established in any Court of
Justice, unless a Court of competent jurisdiction in [India] has
granted probate of the will under which the right is claimed, or has
granted letters of administration with the will or with a copy of an
authenticated copy of the will annexed.
[(2) This section shall not apply in the case of wills made by
Muhammadans 36[or Indian Christians], and shall only apply—
(i) in the case of wills made by any Hindu, Buddhist, Sikh or
Jaina where such wills are of classes specified in clauses (a) and (b)
of Section 57, and
(ii) in the case of wills made by any Parsi dying, after the
commencement of the Indian Succession (Amendment) Act, 1962,
where such wills are made within the local limits of the ordinary
37[original] civil jurisdiction of the High Courts at Calcutta,
Madras and Bombay, and where such wills are made outside those
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limits, in so far as they relate to immovable property situate within
those limits.]” (Emphasis supplied)
14. The plain reading of Section 213 of the Indian Succession
Act, 1925 makes it abundantly clear that no right as executor or
ligatee can be established in any court of justice unless a court of
competent jurisdiction in India has granted probate of the Will
under which right as claimed or has granted letters of
administration with the Will or an authenticated copy of the Will
annexed. But Section 213 of Indian Succession Act makes it crystal
clear that Section 213 is not applicable to Mohammadans or Indian
Christians and it shall only apply in case of Wills made by inter-alia
Hindus where such Wills are of clauses specified in clause (a) and
(b) of Section 57. It is relevant to refer to Section 57 of the Indian
Succession Act, 1925 which reads as under:-
“[57. Application of certain provisions of Part to a class
of wills made by Hindus, etc.—The provisions of this Part which
are set out in Schedule III shall, subject to the restrictions and
modifications specified therein, apply—
(a) to all wills and codicils made by any Hindu, Buddhist,
Sikh or Jaina, on or after the first day of September, 1870,
within the territories which at the said date were subject to the
Lieutenant-Governor of Bengal or within the local limits of the
ordinary original civil jurisdiction of the High Courts of
Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those
territories and limits so far as relates to immovable property
situate within those territories or limits
; and
(c) to all wills and codicils made by any Hindu, Buddhist,
Sikh or Jaina on or after the first day of January, 1927, to which
those provisions are not applied by clauses (a) and (b) : ]
Provided that marriage shall not revoke any such will or
codicil.” (Emphasis supplied
15. A plain reading of clauses (a) and (b) of Section 57 of the
Indian Succession Act, 1925 makes it abundantly clear that the
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provisions of part-IV of the Indian Succession Act, 1925 is
applicable to (a) all Wills and Codicils made by inter-alia Hindu on
or first day of September, 1870 within the territories which at the
said date was subject to the Lieutenant Governor of Bengal or
within the local limits of the ordinary civil jurisdiction of the High
Court of Judicature of Madras and Bombay and (b) all such Wills
and Codicils made outside those territories and the limits so far as
relates to immovable property situate within those territories or
limits. So the conjoint reading of Section 213 along with Section 57
of the Indian Succession Act, 1925 makes it abundantly clear that
after insertion of sub-rule 2 of Section 213 vide Section 4 of Act 16
of 1962 with effect from 30.03.1962 no Will executed by any Hindu,
Buddhist, Sikh or Jaina if they are made outside the territories
which on 01.09.1870 was subject to the Lieutenant Governor of
Bengal or within the limits of ordinary civil jurisdiction of High
Court of Judicature of Madras and Bombay and the Will or
Codicils were made not related to immovable properties situated
within the territories which was on 01.09.1870 was subject to the
Lieutenant Governor of Bengal or within the local limits of
ordinary original civil jurisdiction of High Court of Madras and
Bombay; such wills are not required to be probated to escape the
condition precedent set out in Section 213 of the Indian Succession
Act requiring probate of Will etcetera for establishing the right as
executor or ligatee in any court of civil jurisdiction.
16. In this respect, the learned senior counsel for the appellants
relies upon the Judgment of Hon’ble Supreme Court of India in the
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case of Mrs. Hem Nolini Judah (since deceased) and after her
legal representative Mrs. Marlean Wilkinson vs. Mrs. Isolyne
Sarojsbashini Bose and Others, reported in AIR 1962 SC 1471
wherein before amendment of the Indian Succession Act, 1925 as
the Judgment in the Civil Appeal No. 273 of 1959 dated 16.02.1962
was delivered before insertion of Sub-section 2 of Section 213 of the
Indian Succession Act, 1925, vide Section 4 of Act 16 of 1962 with
effect from 30.03.1962, wherein the Hon’ble Supreme Court of
India obviously has no occasion to consider Sub-section 2 of
Section 213 as it stood amended vide Section 4 of the Act No. 16 of
1962 with effect from 30.03.1962, considering the then prevailing
statute, in the facts of that case, the Hon’ble Supreme Court of
India has observed that Section 213 creates a bar to the
establishment of any right under Will by any executor or any
ligatee, unless probate or letter of administration of the Will has
been obtained.
17. Now coming to the facts of the case, the undisputed fact
remains that the Will was executed at Ramgarh and there is no
pleadings of the parties that Ramgarh was either on 01.09.1870
within the territory which was subject to the Lieutenant Governor
of Bengal on 01.09.1870 or the same was within the local limits of
ordinary civil jurisdiction of the High Courts of Judicature of
Madras and Bombay but as per the common knowledge, Ramgarh
was under an independent Princely State on 01.09.1870. Under
such circumstances, this Court is of the considered view that both
the courts below have not committed any illegality by allowing the
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plaintiffs to establish their right under the Will in question which
was marked Ext.1 without objection even though the said Will was
not probated, keeping in view that the Partition Suit No. 124 of
2008 was filed on 19.07.2008 that is much after the amendment of
Section 213 was made with effect from 30.03.1962.
18. So far as the contention of the appellant regarding the
evidence in the record having not been appreciated in its proper
perspective is concerned, this Court after going through the
materials in the record finds that the concurrent finding of fact of
both the courts below is not based on any evidence which were
was not admissible nor the courts below have excluded any
evidence which was admissible nor the finding of fact can be
termed as outrageously defying logic incurring the blame of being
called perverse. Hence, this Court is of the considered view that
there is no perversity committed in the finding of facts by both the
courts below and no substantial question of law is involved in this
appeal.
19. Accordingly, this appeal being without any merit is
dismissed.
20. Let a copy of this Judgment be sent to the court concerned
forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 29th October, 2024
AFR/ Sonu-Gunjan/-
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