Bombay High Court
Lilabai W/O Kisanrao Chavan And ... vs Deokabai Wd/O Motiram Kadam And Umabai ... on 28 November, 2007
Equivalent citations: 2008(2)BOMCR200, 2008 (4) AIR BOM R 61, AIR 2008 (NOC) 2050 (BOM.) (NAGPUR BENCH), 2008 (3) AJHAR (NOC) 925 (BOM.) (NAGPUR BENCH), 2008 A I H C 2823
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. This Second appeal has been filed by the original plaintiffs whose claim in respect of partition of Survey No. 54 and House No. 143, Ward No. 18 of Amravati was rejected while rest of the claim was allowed.
2. The facts giving rise to this appeal can be stated thus The present appellants are the heirs of the original plaintiff Sonabai. Sonabai's husband Ganpatrao died in the year 1938 living behind him one son Motiram and two daughters namely; the present appellants/plaintiffs. Defendant No. 1 is the widow of Motiram the son of Sonabai while defendant No. 2 is daughter of defendant No. 1. It is alleged that the suit property mentioned in scheduled A and B attached to the plaint is the joint family Property left behind by Ganpatrao. The said property was being managed by Motiram after death of Ganpatrao. Motiram had a son Dadarao. Both Motiram and his son were murdered on 18/10/1966. The plaintiffs submit that there was no partition of the suit property and as such they claim one-half share in the suit property.
3. Defendants No. 1 and 2 resisted the suit. They do not dispute that the property originally belonged to Ganpatrao. It is their contention that soon after death of Motiram and Dadarao there was a partition and the plaintiffs and the defendants were cultivating and enjoying their separate share. It is alleged that field S. No. 54 of Rajapeth, Amravati was put to share of defendant No. 1 Deokabai while the property at Maholi Chor was put to the share of the plaintiff Sonabai. It is alleged that Sonabai was enjoying her own property while defendant was enjoying her own property. It is further alleged that defendant No. 1 was residing in the house at Amravati and that was also put to her share. It is further alleged that plaintiff herself had agreed that upon her death, her property would devolve upon defendant No. 2.
4. The learned judge of the trial court framed issues and found that there was already a partition and the property did not continue to be joint. The learned judge of the trial court also found that the present plaintiffs who are heirs of Sonabai were entitled to half share out of Survey No. 96/1. He, therefore, partly decreed the claim. Being aggrieved by that, the plaintiffs who are heirs of Sonabai filed appeal. The learned Joint District Judge, who dealt with the appeal, found that the partition had already taken place and memorandum was reduced to writing. He held that the property of Sonabai did not devolve upon Umabai by virtue of the agreement in the partition deed (Exh.83). Holding so, he dismissed the appeal. Being aggrieved by the dismissal, this second appeal is filed by the plaintiffs which came to be admitted on the following substantial question of law.
Whether the appellate court was justified in holding that even if the document Exh.83 be treated as partition-deed, it can be looked into for collateral purposes, i.e. severance of the status of joint family and accordingly the suit for partition of joint family property was liable to be dismissed.?.
5. I have heard Advocate Ms.Zinzarde holding for Advocate Mr.Deshpande for the appellants and Mr.Joharapurkar, Advocate for the respondents.
6. Learned judge of the appellate court has dealt with this question very elaborately. Exh.83 is said to be a document of partition. The learned appellate judge of the first appellate court has found that the partition had taken place orally much prior to Exh.83, and Exh.83 is merely a memorandum. There cannot be any dispute that an oral partition of a joint family property is permissible. In the instant case, it is not disputed that the suit property was a joint family property. Where document in respect of partition comes into existence after the oral partition has already taken place, it will neither require stamp nor registration. The partition-deed would require registration and stamp duty only if interest is created in specific property by or under that document. If there is an oral partition, that oral partition itself creates interest in that specific property and not the document which comes into existence later. It would be necessary to look into the admission given by the deceased Plaintiff Sonabai in her evidence. It is admitted by her in her evidence that all relatives had gathered for the 13th Day rites of death of Motiram and at that time they suggested that the property at Maholi Chor should be cultivated by her and property at Amravati should be cultivated by Deokabai. She states that since then there was no dispute between her and Deokabai defendant No. 1. She also admits that since then she is appropriating the income of fields at Mohali while defendant No. 1 is appropriating the income of field at Amravati. The documents on record clearly go to show that defendant No. 1 has been separately paying the land revenue as well as the Municipal taxes of the house. The learned judge of the first appellate court, therefore, rightly held that the partition had taken place in 1966 and the document was written in 1967 and it can be only treated as a memorandum. In view of this, I fully agree with what has been observed by the learned judge of the first appellate court.
7. In fact, the question as to whether the document Exh.83 could be looked into to find out if there was severance of status becomes redundant in view of the finding that it is not a partition deed but a memorandum. Even otherwise as long back as in the year 1968, the Supreme Court in 1968 Mh.L.J.791 (Siromani and Anr. v. Hemkumar and Ors.) observes as follows The first question to be considered in this appeal is whether the deed, Exh.D-4 dated December, 27, 1943 is admissible in evidence. On behalf of the appellants Mr.Gupte put forward the argument that the document is inadmissible in evidence as it effected the partition of the properties of the value of more than Rs. 100 and it was not registered. It was argued that there was allotment of specific properties to individual coparceners in this document and its registration was therefore compulsory under Section 17(1)(b) of the Registration Act. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenary and there was no partition of the properties by metes and bounds. It is not possible to accept this argument as correct.
The relevant portion of Ex.D-4 is to the following effect:
With regard to ryoti lands, para.1 definitely states that Hemkumar is alloted 51 acres, Dinmani 39 and Shiromani 33 acres. With regard to the joint family house there is partition between the three brothers by metes and bounds and specific shares are given to each. In view of the recitals in Ex.D-4 we are of opinion that there is allotment of specific properties to individual coparceners and the document therefore falls within the mischief of Section 17(1)(b) of the Registration Act. It follows that Ex.D-4 is not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property has ceased to be joint property. Of course, the document is admissible 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 dated December 27, 1943 (See the decision of this Court in Nanni Bai v. Gita Bai(1)] This substantial question as formulated by this Court in the year 1996 was already, in fact, answered by the Supreme Court in 1968. It is clear from this judgment of the Supreme Court that the document can be used for proving the severance of status. As a result, I do not find any substance in the second appeal. It is dismissed.