- (1.) HEARD learned counsel for both the parties. These first appeals are directed against common judgment and decrees dated 11.8.2004 passed by A.D.J. Court no.11, Varanasi in O.S. no.191 of 1998 and O.S. no.517 of 2001. Both the suits were filed by Smt. Sitamani Devi Kushwaha, respondent in these appeals against Rameshwar Prasad Verma, appellant in these appeals. The properties involved in both the suits are two houses numbered as D 64/50 and D 64/150A situate in Mohalla Madhopur Shivpurwa, District Varanasi built on part of plot of land bearing no.456/610/2 total area 0.384 hectare and the remaining part of the said plot in the form of parti (sahan or appurtenant land of the houses) area 0.192 hectare. In the first suit relief of permanent prohibitory injunction in respect of half of the property in dispute was sought and through the second suit partition of half share of the plaintiff in the properties in dispute was sought. Both the suits were consolidated and decreed by the common judgement. Through the decree passed in the first suit defendant was restrained from interfering in the joint possession of the plaintiff over the properties in dispute. Defendant was also restrained from selling the property in dispute without partition. In the suit of 2001 a preliminary decree was passed declaring half share of the plaintiff in the properties in dispute and rest half share of the defendant. Pleadings Plaintiff respondent pleaded that she was married with Heera Lal, son of Hanuman Prasad, (or Das) that Sri Heera Lal died in 1962 after few months of marriage with the plaintiff that the property in suit belonged to Hanuman Prasad who died in 1989 leaving behind him only two heirs Rameshwar Prasad Verma, the defendant and Smt. Sitamani Devi (wife of predeceased son) the plaintiff and in this manner the plaintiff inherited half property of Hanuman Prasad after his death. The defendant admitted that plaintiff was widow of his deceased brother Heera Lal who had died during life time of their father in 1962 after few months of marriage and that Hanuman Prasad died in 1989. However, defendant appellant pleaded that in January 1967 an amount of Rs.30000/ - was paid to the plaintiff which was almost half of the market value of the entire property of Hanuman Prasad and in lieu thereof plaintiff gave up her rights in the property of her father -in -law; accordingly, she was not entitled to any share in the property of Hanuman Prasad who died in 1989. No issue was born out of the wedlock of Heera Lal and the plaintiff. Proceedings before the court below: - Requisite issues were framed by the court below. Both the parties adduced oral evidence some documentary evidence was also filed by the defendant. The court below held that the amount of Rs.30000/ - alleged to have been given to the plaintiff in January 1967 was not paid to her. Admittedly, there was no receipt of payment of the said amount. The points involved: - The following points arise for decision in these first appeals. 1. Whether in January 1967 an amount of Rs.30000/ - as half of the market value of entire property of Hanuman Prasad was paid to the plaintiff? 2. Whether the payment of Rs.30000/ - if found to have been made to the plaintiff amounted to family settlement/partition and thereafter plaintiff ceasd to have any right or interest in the property of Hanuman Prasad? Point NO.1 Plaintiff out rightly denied having received either Rs.30000/ - or any other amount in January 1967 or at any other point of time. The main evidence which the defendant relied upon for proving the fact of payment of Rs.30000/ - to the plaintiff in January 1967 were two letters/notices written by the plaintiff to Hanuman Prasad her father -in -law on 21.1.1966 and 14.12.1966 requesting that she must be paid at least Rs.50/ - per month as maintenance. These letters are paper no.88 Ga and 89 Ga. In the first notice by the plaintiff it is mentioned that she had received reply of earlier notice which gave her hope that her in laws will take care of her, however, no one came to enquire about her hence it was clear that they (Hanuman Prasad and his other family members) were not interested in taking care of her, a poor and helpless widow. In the end it was requested that expenses should be paid to her without any excuse. Through the second notice dated 14.12.1966 it was requested that Rs.50/ - per month should be given as expenses.
(2.) THE court below held that if defendant and her father Hanuman Prasad were so meticulous that they preserved the aforesaid notices then they must have obtained the receipt of payment of Rs.30000/ - if in fact the said amount had been paid to the plaintiff by them. Defendant in his oral statement as well as Sri Umashanker defendant's wife's real brother in his oral statement tried to prove the payment of Rs.30000/ - to the plaintiff. Sri Umashanker in his oral statement (examination in chief on affidavit) stated that about 35 years before (statement recorded on 13.11.2003) Hanuman Das called the deponent through the defendant and when the deponent reached at the house of Hanuman Das he found that a social, political and recognised personality Sri Jagat Narayan was also present there and apart from him plaintiff, Hanuman Das and defendant were also present and in the presence of all those people Haunman Das started the discussion and stated that the plaintiff his daughter in law (widow of his deceased son) had refused to live with him and had given notice for maintenance and she was not agreeing to the advice hence all the persons present might evolve some formula to resolve the dispute. Thereafter it was stated that after the start of the discussion by Hanuman Das plaintiff categorically stated that she did not want to reside with her in laws and she wanted maintenance as per her notice and she further said that in case lump sum amount was paid to her then there would be no necessity of monthly maintenance and she would be able to live her life and she would purchase a small house. Sri Umashanker further stated that thereupon he and Jagat Narayan enquired that how much amount she wanted whereupon she said that at least Rs.30000/ - and she further said that market value of both the houses and the agricultural land of Hanuman Prasad was about Rs.60000/ - hence half of that must be given to her, thereupon Hanuman Prasad said that it was not possible to pay Rs.30000/ - at once, however, he was agreeable to whatever decision might be taken by the people who were present there and ultimately the matter was settled at Rs.30000/ - whereupon Hanuman Das said that within a week he would arrange the money and it would be sent through the defendant to the plaintiff. In para 8 of the affidavit of examination in chief Sri Umashanker said that after about 10 days defendant met him and told him that he had handed over Rs.30000/ - to the plaintiff at her parent's house in the presence of her parents and that defendant had told the said fact to late Jagat Narayan also. Sri Alakh Dev Gupta was also examined by the defendant who stated that plaintiff never resided in any of the houses. Sri Alakh Dev Gupta in his cross examination stated that he had not gone inside the house in dispute that father of the defendant was initially growing vegetables in the land and thereafter defendant was growing wheat, rice, etc. He further stated that he had heard that plaintiff Sitamani Devi was defendant's brother's wife however he had never seen her and he was not in a position to recognise her. He further said that he was not aware of the name of plaintiff's late husband. As far as question of actual residence of plaintiff in any of the two houses or any part thereof is concerned, it is not of much importance. If she is held to be co sharer then possession of defendant will be her possession also. The court below held that Hanuman Prasad was not shown to be possessed of such means that he could within a week arrange Rs.30000/ - in 1967. At that time Rs.30,000/ - had lot of value in no case less than Rs.10/ - lacs by today's standard. By growing vegetables in a small piece of land he could not save so much amount. It was not shown that either he sold some of his properties or borrowed the amount from someone or had Rs.30000/ - in his bank account. The statement of Umashanker that appellant Rameshwar told him that he had paid Rs.30000/ - to the plaintiff is hearsay. The plaintiff had given at least three notices to Hanuman Prasad father -in -law (in the first notice dated 21.1.1966 reference was made to an earlier notice also). It is admitted that inspite of three notices not a single penny had been paid by Hanuman Prasad to her as maintenance for five years. Rs.50/ - per month demanded by plaintiff as maintenance was less then 0.2% of Rs.30,000/ - (1/600 part). As Hanuman Prasad had not paid even Rs.50/ - to the plaintiff hence it was not conceivable that he would pay 600 times of the said amount in lump sum without any deed or receipt. According to the appellant, the plaintiff after the death of her husband Hari Lal never resided with her father -in -law. The relations were quite strange. Plaintiff had given three notices. In such a situation it was inconceivable that a huge amount of Rs.30000/ - would be paid to her in January 1967 without obtaining any writing from her.
(3.) THE argument of learned counsel for the appellant that due to close relationship, not obtaining the receipt etc. was not unusual. I am not convinced with this contention in the least. Accordingly, point no.1 is decided against the appellant and in favour of the plaintiff respondent. In respect of point no.2 learned counsel for appellant has cited the authority of the Supreme Court reported in Kale & Others vs Deputy Director Of Consolidation AIR 1976 S.C. 807 and has contended that even if without any formal deed of settlement amount of Rs.30000/ - was received by the plaintiff respondent, it amount to family settlement and relinquishment of all her right in the property of Hanuman Prasad. However, as under point no.1 it has been found that amount of Rs.30,000/ - or any other amount was not paid to the plaintiff hence there is no need to decide as to whether payment of the amount amounted to family settlement. No other point has been argued. The appeal is, therefore dismissed. Costs made easy throughout.;