- (1.) JANARDAN Sahai, J. Gangoo Rai was the common ancestor of the parties. He had three sons, Deepan Rai, Ram Naresh Rai and Jagar Seth Rai. The petitioners are the descendents of Jagar Seth Rai. The contesting respondents are the descendents of the other two branches. The dispute relates to the land in village Gadua Maqsoodpur. In the basic year these lands were recorded in the names of Ram Briksh Rai, Raj Net Rai, Aas Karan Rai, sons of Deepan Rai, Tannoo Rai, Deo Nath Rai and Bhola Rai descendants of all the three branches. Objections, under Section 9 of the U. P. Consolidation of Holdings Act were filed by Bhola Rai the petitioners predecessor claiming sole tenancy rights. It is not in dispute that these plots were fixed rate tenancy plots of Amrit Rai. His daughter Jinsa Kunwar was married to Jagar Seth Rai ancestor of the petitioners. On the death of Amrit Rai and his widow Lakhna Kunwar the plots in dispute were succeeded to by their daughter Jinsa Kunwar, the wife of Jagar Seth Rai. As the lands were fixed rate tenancy land and came from the wife's side of Jagar Seth Rai, they were liable to be treated as self- acquired property and would have passed on by succession within the branch of Jagar Seth Rai alone. On the death of Jinsa Kunwar, her son Vibhuti Rai father of Bhola Rai succeeded as sole tenant.
(2.) THE case of the contesting respondents is that on the death of Amrit Rai and Lakhna Kunwar the Zamindar claimed the properties in dispute, which gave rise, to a litigation which was fought out by Joint Hindu Family of the three branches and with joint family funds and it was with the efforts of the Joint Hindu Family that the land could come into the hands of Jinsa Kunwar. According to the contesting respondents the Joint Hindu Family was possessed of certain other lands and Vibhuti Rai had put the plots in dispute into the common hotch pot and the plots in dispute thus were stamped with the character of Hindu Undivided Family property. THE case of the contesting respondents found favour with the Consolidation Officer who dismissed the objections of Bhola Rai. THE appeal against the order filed by Bhola Rai met with the same fate and the revision too against that order was dismissed by the Deputy Director of Consolidation, Ghazipur on 24-6-2000. THE evidence which was considered by the authorities below consisted of documentary as well as oral evidence. On 26-1-1912 a deed of Dastabardari (surrender) was executed by Vibhuti Rai. In the introductory portion of the deed there is an admission of Ram Naresh Rai and Deepan Rai (of the other two branches) having a share in the disputed land. THEre is a recital in the deed that as the land was recorded solely in the name of Vibhuti Rai the deed was being executed for assurance of Ram Naresh and Deepan Rai lest the successors of Vibhuti Rai lay claim to the plots as their own exclusive land. THE deed also bears a recital of Vibhuti Rai giving exclusive possession over a substantial portion of the disputed lands to the other two branches. Vibhuti Rai died in the year 1957. On his death a mutation case was filed. In that mutation case a compromise was entered into. In the compromise application by Bhola Rai and descendents of the other two branches it was agreed that the lands in dispute are joint Family land and were entered in the name of Vibhuti Rai as peshwa khandan and that the lands be recorded in the names of all the branches in the revenue records. THE compromise was acted upon and the names of the descendents of all the three branches were consequently recorded. THE authorities below have considered various facts which go to prove that the family was treating the land in dispute as Joint Hindu Family Land. Ram Briksha Rai the son of Deepan Rai had taken a loan for constructing a well on one of these plots of village Gadua Maqsoodpur. Tunnu Rai a descendent in the branch of Ram Naresh Rai had also taken taqabi loan in village Gadua Maqsoodpur and Bhola Rai and the father in law of Udai Narain Rai were guarantors of the said loan. THEre is evidence which was believed by the authorities below that Tunnu Rai was living in Gauda Maqsoodpur and had also built a house there by purchasing bricks from a Bhatta in village Duhiya. Moneys were also sent by Tunnu Rai to Udai Narain Rai. On the basis of these facts, the Courts below have recorded a finding that the property in dispute was treated as Joint Family property. THE case of blending set up by the respondents has been believed. THEse are findings of fact. Sri Sankatha Rai Counsel for the petitioners submitted that the surrender deed of 1912 was never executed by Vibhuti Rai, that Vibhuti Rai was then a minor, that the surrender deed was never acted upon and that the law of blending is not applicable to a fixed rate tenancy. Apart from the last submission all the other contentions were raised by the petitioners before the Deputy Director of Consolidation. It was found by the Deputy Director of Consolidation that the deed of 1912 was indeed executed by Vibhuti Rai. In coming to that conclusion the Deputy Director of Consolidation placed reliance upon the endorsement made by the Sub-Registrar that the deed was presented by Vibhuti Rai himself. What was filed before the Consolidation authorities was a certified copy of the said deed. Although it was submitted by Sri Sankatha Rai that the said certified copy does not contain any recital indicating that the signatures of Vibhuti Rai were present on the deed, the non existence of such a recital in a certified copy is not material especially in view of the fact that the deed is an old one of the year 1912. It is a registered deed and was presented for registration by Vibhuti Rai himself, a fact borne out from the endorsement of the Sub-Registrar who also certified that the signatures of Vibhuti Rai were taken in his presence and he admitted its execution. The submission that Vibhuti Rai was a minor has been repelled by the Courts below. The finding is that Vibhuti Rai was about 23 years old when the deed was executed and he was not a minor. The findings recorded by the authorities below upon these facts are findings of fact and are not shown to be vitiated by any error of law. As regards the question whether the deed was acted upon, it is submitted by Sri Sanktha Rai that the name of Vhibuti Rai continued to be recorded in the revenue records till the year 1957 as his bhumidhari. Reliance has been placed upon a mortgage deed in which Vibhuti Rai the mortgagor described himself as the sole owner of the disputed land. The mortgage deed has been considered by the Courts below. The preponderance of evidence which exists indicates that the property in dispute was treated as Hindu Undivided Family property. The mere fact that Vibhuti Rai represented himself as the sole owner of the plots in dispute to an outsider, namely the mortgagee is not sufficient reason to give a go bye to material admissions by Vibhuti Rai in the deed of 1912 that in the properties in dispute the branch of Deepan Rai and Ram Naresh had also a share. That apart in the compromise in the mutation case in the year 957 it was agreed upon that the properties are joint properties. It is well- settled that an admission made by a party unless explained is conclusive and binding against the person who makes it. In this case admissions were made not only by Vibhuti Rai in the deed of 1912 but also on his death by his son Bhola Rai in the compromise application. No explanation is forthcoming in what circumstances these admissions were made. These admissions are, therefore, binding on the petitioners. The mere fact that the name of Vibhuti Rai alone was recorded in the revenue records till his death is not a conclusive circumstance indicating that the plots in question belonged to Vibhuti Rai alone. It is well known that in property of the Hindu Undivided Family the name of one person of the branch is often recorded in representative capacity. Moreover the admission regarding share of other branches contained in the dast bardari deed of 1912 may have been considered by other members of the family a sufficient safeguard of their rights it being felt unnecessary to get the names of the other branches recorded in the life time of Vibhuti Rai. The finding of fact recorded by the authorities below is that the joint family continued till 1976. The fact, therefore, that Vibhuti Rai's name continued to be recorded in the revenue records till the year 1957 is not determinative of the matter.
(3.) SRI Sankatha Rai then submitted that the findings of the Courts below that the properties in dispute had been blended with the Hindu Undivided Family property is erroneous and vitiated in law. It is submitted that in order to apply the doctrine of blending there must be in existence at the time of the blending other Hindi Undivided Family property into which the separate property of a coparcener is to be blended. The preposition finds support from AIR 1963 SC 1601, Lakkireddi Chinna Venkata Reddy & Ors. v. Lakkireddi Lakshmama. There is evidence on record to indicate that the family was possessed of land in other villages. The existence of such joint family land is borne out from the evidence. From the khewat batwara of 1910, Annexure I to the supplementary counter-affidavit, it appears that Gangoo Rai the common ancestor of the parties was having lands in mauza Kalyanpur Reotipur. In the khatauni 1910 certain plots are recorded in the name of Gangoo Rai in village Narainpur alias Hariharpur. Some of these plots are also entered in the khatauni of 1356 F. Udai Narain Rai in his deposition before the Consolidation Officer has admitted that the family has 50-60 bighas of land in Mauza Kalyanpur, Reotipur, Hardwarpur, Gopenanpur etc. There is thus ample material in proof of the fact that the Joint Family possessed land in other villages. Tunnu Rai in his deposition has stated that when Vibhuti Rai became major he blended the lands of village Gauda Maqsoodpur into the Hindu Undivided Family property. After the compromise in the year 1957, the names of all the branches were recorded in the revenue records and they continued to be so recorded until the basic year. The Deputy Director of Consolidation has found that the petitioners had knowledge about those entries as the khataunies were filed by Bhola Rai in another case. All these findings which have been recorded by the Courts below are findings of fact. It was submitted by Sri Sankatha Rai that there is nothing in the deed of 1912 to prove blending. The deed purports to give exclusive rights in respect of a portion of the disputed land in favour of the other two branches. It is rather described as a deed of surrender and surrender it is submitted could only be made to the landholder, the Zamindar. No doubt the deed of 1912 does not contain terms constituting blending but no document is required under law to be executed for blending separate property of a coparcener into Hindu Undivided Family property. The deed of 1912 contains an admission that Deepan Rai and Ram Naresh Rai also have a share in the property. It, therefore, recognizes the fact that the properties in question belong to the Joint Hindu Family and the deed is no more than an evidence of this fact. That the disputed lands became Hindu Undivided Family Property by blending has been proved by oral evidence and the finding is one of fact.;