Patna High Court
Jugal Kishore Singh And Ors. vs Gobind Singh And Ors. on 2 December, 1991
Equivalent citations: AIR1992PAT128, 1992(40)BLJR477, AIR 1992 PATNA 128, 1992 BLJR 1 477 (1992) 2 PAT LJR 35, (1992) 2 PAT LJR 35
JUDGMENT Nagendra Rai, J.
1. The defendants are the appellants and they have filed the present appeal against the judgment and decree dated 16-2-1985, passed by the Sub-Judge, Gumla, in Partition Suit No. 25 of 1979, decreeing the plaintiffs-respondents' suit for half share in the suit properties consisting of the lands of Khatas Nos. 7 and 8 in village Salkaya, P. S. Raidih in the district of Ranchi.
2. Admittedly, parties are Hindus and governed by Mitakshara School of Hindu Law and Hindu Succession Act, 1956, in the matter of succession. The lands were recorded in the name of Kachnu Ram, the common ancestor of the parties. The relationship of the parties will appear from the following pedigree:
Kachnu Ram | __________________________________________________ | | | Parsan Durga Malar Singh Singh Singh | | | __________________________ | | | | | Sudhram Bilku Ram Budhram Gandhrap Paltu Singh Singh Singh (D.I.) Singh Singh (D.2) (D.3) x.
____________________________________________
| | |
Gobind Ram Gopal Ram Mahesh Singh
Singh (P.1) Singh (P.2) (P.3).
3. According to the case of the plaintiffs, they and defendants are all members of the joint Hindu family. Bilku Ram Singh son of Malar Singh died issueless in jointness with the plaintiffs and the defendants and his interest devolved on the other members of the joint family. There was never any partition between the members of the joint family, but, by way of convenience, they are cultivating the lands separately. On account of family dispute the plaintiffs felt difficulties in keeping the properties joint and so approached the defendants for amicable partition but the defendants did not agree and hence the suit.
4. The defendants, in their written statement, did not deny the relationship of the parties. They asserted that the suit is barred by the principle of waiver, estoppel and acquiescence. It also barred by law of limitation and adverse possession. According to them there was partition between the three sons of Kachnu Ram during his lifetime in the year 1934 and the partition was accepted by all the brothers. The partition was effected by the Panches and in proof of it a Panchnama was also prepared at the time of partition and, accordingly, all the three brothers have been coming in separate possession over the lands allotted by the Panches. Parties are in separate possession of the lands, according to the aforesaid partition, and not for convenience sake, as alleged. It is further submitted on their behalf that after the death of Parsan Singh his three sons, who are defendants in the suit, came in possession of his properties and after the death of Durga Singh and his only son Sudhram Singh the three sons of Sudhram Singh, who are plaintiffs in the suit, came in possession of the properties allotted to him. Malar Singh, who also died issueless and after his death the properties of his share are partitioned between the plaintiffs and the defendants in the year 1962 and each branch got half share and since then they are coming in possession over the said properties of their respective shares. It was further asserted that the eldest son of the family was entitled to larger share than others and, accordingly, the eldest son Parsan Singh got more share than his two brothers.
5. Both the parties adduced oral and documentary evidence and the trial court framed a number of issues and after considering the entire materials on the record came to the conclusion that two Batwara instruments (Ext. C of the year 1934 and Ext. D of the year 1962) cannot be treated as legally admissible documents to prove partition between the parties, as both of them are unregistered documents and they require registration under the provisions of Section 17 (1)(b) of the Registration Act and that the defendants have failed to prove that there was a partition between the parties by metes and bounds and the properties remained joint between the parties, and, accordingly, decreed the plaintiffs' suit for half share in the suit properties.
6. Learned counsel appearing on behalf of the appellants contended that the trial court has erred in law in holding that the two partition documents were the instruments of partition and not admissible for want of registration ignoring the fact that the transfers were not effected by these instruments and they were only a memorandum of partition which are not required to be registered under the law and on this ground alone the judgment of the trial court is vitiated in law, He further submitted that the oral and documentary evidence on the record clearly point out that the parties were living separately and cultivating their lands separately and also entered into separate transactions and the cumulative effect of all these facts lead to only one inference that there was a partition between the two branches, as alleged by the defendants. He further contended that the memorandum of partition/family arrangement is just and proper and according to customs prevalent in the family, the eldest son Parson Singh was given more share as Jethhis (elder's share). Even if this family arrangements is not accepted as binding documents between the parties, the father of the defendants being the eldest member of the family is entitled to more share as Jethhis.
7. Learned counsel appearing on behalf of the respondents, on the other hand, contended that the contents of the two partition documents clearly show that the alleged partition were effected by the said documents and as such they require registration and in absence of the registration-they are not admissible in law and the trial court has rightly kept the aforesaid documents out of consideration. He further stated that separate residence, separate mess, separate cultivation and separate transactions by the members of the family are not a conclusive proof of partition. He further contended that the defendants have neither pleaded in the written statement nor led any evidence to show that the elder brother is entitled to more share than the other brothers nor they have proved the custom prevalent in the caste of the parties by cogent and reliable evidence and as such the defendants are not entitled to claim that their father was entitled to more share than the other members of the family.
8. Admittedly, parties are governed by Mitakshara Hindu Law. There is presumption of jointness and the burden to prove partition is on the person who asserts it. According to the plaintiffs' case the family was joint and there was no partition by metes and bounds; whereas, according to the defendants, the partition between the three sons of Kachnu Ram took place as back as in the year 1934 and as such it is for the defendants to prove that there is a partition, as alleged by them.
9. The defendants-appellants heavily relied upon the two documents, namely, Ext. D the Panchnama dated 17-2-1934, showing partition of suit land between the three sons of Kachnu Ram and Ext. C another Panchnama dated 29-5-1962, showing partition of the lands of Malar Singh between both branches of the plaintiffs-respondents and the defendants-appellants.
10. The first question to be considered is as to the nature of the aforesaid two documents as to whether they are the instruments of partition in the sense that the partition was effected by the said documents thus requiring registration under Section 17(1)(b) of the Registration Act or they have only incorporated the terms and conditions of earlier partition effected between the parties and are a memorandum of partition only incorporating the past transactions of partition and thus not requiring registration in the eye of law.
11. The family arrangements are entered between the parties with a view to resolve the family dispute once for all. The members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. However, the family arrangement may be oral or it may be in writing but before a family arrangement can be held to be a binding one, it should be voluntary one and should not be induced by fraud, coercion and undue influence.
12. Written family arrangements are of two types, namely, the instrument incorporating the terms of the family arrangements and the instrument prepared by way of memorandum after the family arrangements has already been made for the purpose of record or for future use. In the former case registration is necessary; whereas, in the latter case the memorandum itself does not create or extinguish any rights in immoveable properties and it does not fall within the mischief of Section 17(1)(b) of the Registration Act and is, therefore, not compulsorily registrable.
13. Even if the instruments incorporating the terms and conditions of the partition, which are required, in law, to be registered and are not registered, even then the same can be used for a collateral purpose, namely, for the purpose of showing the severance of status between the members of the family, the nature and character of possession of the parties and will also be used as estoppel. This question is no longer res integra and has been the subject matter of decision by the various High Courts in different cases and by the apex court on several occasions. In the case of Siromani v. Hemkumar AIR 1968 SC 1299 the Supreme Court observed that the document effecting partition of joint properties of the value of more than Rs. 100/ - requires registration and in absence of registration it is not admissible in evidence to prove title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. The document is admissible only to prove an intention on the part of the coparceners to become divided in status; in other words, to prove that the parties ceased to be joint from the date of the instrument. In the case of Kale v. Dy. Director of Consolidation AIR 1976 SC 807, the Supreme Court laid down the following proposition with regard to the family arrangements :
"(1)The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable.
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
14. It was further held that "even if the family arrangements was not registered, it could be used for collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement".
15. In the light of the aforementioned propositions, the two documents Exts C and D have to be considered as to whether they are partition deeds incorporating the terms and conditions of the partition between the parties or are only the memorandum of partition incorporating the terms and conditions of a partition already effected for their future use.
16. Ext. D is the earliest Panchnama dated 17-2-1934. This document shows that Kachnu Ram divided his properties amongst his three sons, namely, Parsan Singh, Durga Singh and Malar Singh in presence of Panches. The document further recites the list of properties allotted to three branches. It also shows that the partition was effected in presence of the panches and the same was reduced to writing. According to the said allotment 12 and odd acres were allotted to his elder brother and 6 and odd acres to Durga Singh and 6 and odd acres to Malar Singh.
17. According to the counsel for the appellants the trial court erred in saying that the document incorporated the terms and conditions of partition and as such required registration. From the document it appears that the term was incorporated in the said document and Kachnu Singh divided his properties amongst his three sons giving larger share to his elder son for his maintenance. In my view, the document contains the terms and, conditions of the partition and requires registration. It is not a memorandum of partition incorporating the terms of partition which has taken earlier in point of time. Ext. C is the other Panchnama of the year 1962. According to which the properties of the branch of Malar Singh was divided into two branches after the death of his only son Bilku Ram Singh (died issueless). This document further shows that on 29-5-62 there was a meeting of Panches for partition of the aforesaid lands and the Panches partitioned the lands and the aforesaid Panchanama was prepared containing the signatures of the parties and the Panches. In my view the partition between the parties was effected by this document and it is thus not memorandum of partition and thus it requires registration and in absence of registration those two panchnamas are not admissible in evidence to prove title of the parties, but they can be looked into for collateral purpose, as mentioned above. The next question to be considered is as to whether these Panchnamas are genuine documents and even if they are genuine whether they were acted upon by the parties.
18. Defendant No. 1 examined as D.W. 1 has stated in paragraph 5 of his cross-examination that the first Panchnama (Ext. D) was given to him alone and it was not given to other branches. He kept the same in the box, and the said box has become damaged. He further stated that this Panchnama was given in presence of several persons including Matru Singh. He states that all the lands are mentioned in this Panchnama but he cannot say the details of the same. He also cannot give the details of the area as well as the lands allotted to each of the three branches. The Panches wrote on the Panchnama after consultation. He also admitted that no mutation has been made in the Sherista of the landlord on the basis of the aforesaid Panchnamas. The Zamabandi is joint and the rent is paid jointly. He had signed on the Panchnamas but he cannot say whether the said Panchnama contains the signatures of other members of the family. The evidence on the record further shows that the continuous Khatiyan (Ext.1) is prepared, admittedly, after the aforesaid partition in the year 1934. The aforesaid Panchnama (Ext. D) was never produced either at the time of preparation of continuous Khatiyan or as even for creating separate Zamabandi of the three branches and as such it is difficult to believe that this document was prepared in the year 1934, as alleged by the defendants. Similarly, on the basis of Ext. C, the name of the parties were not mutated. D.W. 1 in his evidence has stated that the second panchnama was given to him in the court by an advocate clerk whose name he does not remember and, as such, it is not safe to rely upon this document on the point that there was a partition of the properties of the branch of Malar Singh. Even if it is assumed that these two Panchnamas are genuine documents, they were never acted upon. The terms incorporated in the Panchnama (Ext. D) of the year 1934 are not just and equitable. I do not feel safe to rely upon these documents even for collateral purposes,
19. The other material relied upon by the appellants to prove the partition is separate cultivation as well as separate transaction between the parties. One of the plaintiffs examined as P.W. 1 has stated that by way of convenience the parties are cultivating the lands separately. His version is supported by the other witnesses, namely, P.Ws. 2, 4 and 6 and there is nothing in their statements to discredit their evidence. On the other hand, their versions get support from the evidence of the defendants in the sense that the defendant No. I in his evidence has admitted that Zamabandi is still joint and the rent is paid jointly. The plaintiffs served notice on the defendants to produce rent receipts which they also did not produce and for that reason adverse inference is to be drawn against the defendants. If those rent receipts would have been produced, they would have gone against the case of the defendants appellants. It is not uncommon in the joint Hindu family that while the properties remained joint members cultivate the land separately by way of convenience.
20. The defendants relied upon the two sale deeds to show that their case of partition is proved by the aforesaid two documents, namely, Exts. B and B/1. Ext.B is the sale deed dated 17-4-58, executed by one Narayan Singh in favour of defendants Budhram Singh, Gandhrap Singh and Paltu Singh, sons of Parsan Singh, and Ext.B/1 is a document executed by Matru Singh in favour of the aforesaid three persons on 2-9-53. The acquisition of the properties by the members of the joint Hindu family does not mitigate against the concept of the joint Hindu family. If there would have been inter se transactions between the parties that would have been of some importance to prove that there was a partition in the family and these documents also do not in any way help the defendants.
21. The trial Court has considered the oral evidence on the point of partition, in detail, and I do not want to over burden this judgment by repeating the same. However, in brief, I may indicate the nature of the evidence adduced by the witnesses which clearly supports the story of jointness. Defendant No. 1 has been examined as D.W. 1 and he has stated that Shradha of Durga Singh, grandfather of the plaintiffs, was performed by Parsan Singh and Malar Singh, his brothers. Shradha of Malar Singh was performed by Parsan Singh as Malik of the family. Similarly, D.W. 2 has also stated that Shradha of Malar Singh was done by Parsan Singh and Durga Singh and the Shradha of Bilku Ram was done by Budhram Singh, who is defendant No. 1, and Sudhram Singh, father of the plaintiffs. D.W. 4 has admitted that Shradh of Bilku was done by Parsan Singh and Budhram Singh. This witness has also admitted that according to the convenience the parties to the suit have been cultivating their lands, The defendants witnesses, namely, D.Ws. 2 to 6, have made contradictory statements on the point of partition by Panches, preparation of Panchnama deeds as well as on the point of separate cultivation and thus it will not be safe to rely on their evidence on the point of partition.
22. Regarding the point urged on behalf of the appellants that Parsan Singh, eldest brother, was entitled to more share according to the custom in the caste in question it is to be stated that no such case is made out in the written statement and the only statement made in the written statement is in paragraph 8 where it has been stated that the elder son of the family is entitled to a larger share than others, accordingly, he gets his share. As the right claimed by the appellants is in derogation of general rule of law, it is for them to prove that there is a custom in the family by which an elder son is entitled to get more share and the said custom is an ancient custom and reasonable. As stated above, the pleading is lacking in this respect. Even the evidence adduced on behalf of the appellants do not show that there was any such custom of ancient origin and the same has been followed in the caste of the appellants. D.W. I in his examination in chief has stated that they belong to Rautiya Chatriya caste and in their cast the elder members of the family is given more share than the other members. In cross-examination he stated that this custom is prevalent in every caste of the Hindus and in his community elder brother is given more share, but, on further cross examination he said that he cannot say as to who was allowed share according to Jethahis. Thus he measurably failed to prove that eldest son is allotted more share in his caste. No other reliable evidence has been brought on the record to establish the aforesaid custom. As has been held by the Supreme Court in the case of Siromani (AIR 1968 SC 1299) (supra) in paragraph 6, that the doctrine of 'Jethansi' or 'Jeshtbhagam' is now absolute and unenforciable and on this ground also the Jethahis cannot be allowed to the appellants.
23. After considering the submissions made on behalf of the parties, I do not find any merit in this appeal and the same is, accordingly, dismissed. However, there will be no order as to costs.