Madhya Pradesh High Court
Roop Chand vs Indradevi And Ors. on 2 July, 1996
Equivalent citations: AIR1997MP200, AIR 1997 MADHYA PRADESH 200, (1997) 2 CIVILCOURTC 562
JUDGMENT A.S. Tripathi, J.
1. This appeal has been preferred against the judgment and decree dated 23-12-1992 passed by the Vth Additional District Judge of Bhind. The trial Court had directed granting permanent injunction restraining the defendants from interfering in the possession of the plaintiff's share in the disputed house.
2. The plaintiff/appellant had filed a civil suit before the trial Court for partition of the House specified in the plaint, situate in the town of Bhind. The plaintiff was claimaing 1/4th share in the said house. The plaintiff alleged that this house was purchased in the year 1947 by his father. His father had died. The plaintiff and his three brothers, who are respondents, had equal shares of 1/4 in the said house. After sometime, the living of the plaintiff and his brothers was separated and they continued to live in separate portions of the same house for quite sometime. Later on one of the defendants mortgaged his share in the same house by mortgage-deed dated 17-4-92 to one Shri Prakash Shivhare and put him in possession. The dispute arose lateron in respect of the living and dealing with the portions of the same house. The plaintiff was aggrieved of his possession being inlercfcred with by the defendants, and filed a suit for partition.
3. The defendants filed written statement alleging therein that in view of the oral family settlement the house was divided in four separate portions and four brothers had started living separately and dealing with their shares independently since then. The contention of the defendants was that since the co-sharers had divided the house in different portions and were dealing with their shares independently, it will be deemed to be a family settlement and no partition was needed by metes and bounds. It was further alleged that one of the co-sharers mortgaged his portion to the mortgagee by registered mortgage deed dated 17-4-1982 dealing the same as his independent portion and the suit for partition was not maintainable.
4. The trial Court framed necessary issues on the point of family settlement and held that four brothers were living separately in the same house for quite some time, one of them had mortgaged his portion on 17-4-1982 as such it will be deemed that there was a family settlement, hence the suit for partition was uncalled for and was not maintainable. With these findings the trial Court dismissed the suit for partition and granted injunction only in respect of interference in the shares of the parties.
5. I have heard Shri N.K. Jain, learned counsel for the appellant/plaintiff, and S/Shri R. A. Roman and V.S. Chaturvedi learned counsel for the defendants/respondents and examined the trial Court's record.
6. The first point which arises for consideration in this appeal was as to to whether there was any family settlement between the parties in the year 1947 and they were living separately and dealing with their shares independently since then.
7. On this point, oral evidence led by the plaintiff was material. P.W. 1 Roopchand, S/o Motilal P.W. 2 Hajarilal, P.W. 3 Dharamchand and P.W. 4 Phoolchand Jain had categorically stated that there was no partition of the house between the co-sharers. The four brothers were no doubt living separately in separate portions of the same house, but they were not dealing with their shares independently. There was no family settlement in that respect at any point of time.
8. On the other hand, defendants' witness D.W. 1 Anand Kumar Jain had no knowledge in respect of the family settlement. He staled that he was born later on and he had simply heard that there was a settlement to live separately in the same house. He had no idea as to when any settlement had taken place. D.W. 2 Phoondilal had simply stated that a settlement had taken place sometime in the year 1947, but he had not joined the settlement process. Further he had admitted that the plot was purchased by the father of the parties and he had constructed a house over the same. After his death the four sons were living in the same house. Later on they had separate living in separate portions, but there was no partition by metes and bounds. 'The testimony of Fundi Lal in this respect of was also ignorant in respect of family arrangement to have taken place at any particular point of time.
9. The only evidence on record which is also admitted by the plaintiff and his witnesses, is that, the parties had separate living in the separate portions, but there is no evidence on record to show that the house was ever either partitioned or separate portions were made for independent and separate living. Mere separate living in the same house by the co-sharers does not amount to partition or any settlement for independent dealing with their shares.
10. This point is finally clinched by the assertion made in the mortgage-deed itself, which is Ex.D/ 2 on record. Para 8 of this mortgage-deed clearly provides that the house was never partitioned nor it was separated by any family arrangement. Only 1/4th share of the house was mortgaged and a bar was put only on the 1/4th share of the entire house. This para demolishes the theory of family settlement that the parties were dealing with their shares independently. The mortgage-deed Ex. D/2 demolishes the theory of family settlement and shows that there was no partition or any settlement between the parties in respect of separate living and independently dealing with their shares. The claim of the defendants that there was a family settlement in the year 1947 is, therefore, demolished and has no legs to stand. The trial Court has assumed by mere statement of the defendants that since they were living separately in the same house, it amounted to family settlement.
11. Learned counsel for the appellant/plaintiff relied on the cases of Shambhu Singh v. Phoolkumari, AIR 1971 SC 1337 and Hazari v. Roopnarain, AIR 1974 SC 347 (sic). The implications of the family settlement were, considered in those cases. In those cases, there was a written family statement, yet the Supreme Court held that mere separate living does not amount to family settlement for independent dealing with the shares given to the parties concerned.
12. In the case of Raisingh v. Keshar Singh, 1984 MPWN 518 it was held that there mere separate residence/separate cultivation did not amount to mutual partion unless there was a mutation of- the names of the parties separately over the disputed property. Similar view was expressed in the case of Ramnarayan v. Dattu 1988 RN 346.
13. In the case of Janouti Bai v. Rajobai, 1985 MPWN 400, Hon. J.S. Verma, J., as he then was, laid down the law that even if there was a family arrangement, it does not amount to partition. He further held that the suit for partition must be for the entire joint family property.
14. In the case of Prakash Chand v. Narendra Nath, AIR 1976 SC 2456, it was held that even if undivided members are carrying on separate , business, that does not amount to partition. Reference was also made to the cases reported in AIR 1981 SC 77 ; (1980 All LJ 902); 1984 MPWN 518 and 1985 MPWN 400 on the point that there can be no presumption for family arrangement and the same has to be proved.
15. In this case, family arrangement, as pleaded by the defendants, was not at all proved on record. There was no settlement in writing. The evidence led by the defendants was simply hearsay that the brothers were living separately in the same house. They had no knowledge as to at what time, the settlement was arrived at. Further mere admission that the four brothers were living separately in the same house and doing separate business do not amount to raise a presumption that there was a family settlement to deal with the property independently of their shares. Also the house stands in the name of four brothers jointly. There was no mutation of co-sharers of their different shares and in that view of the matter, no presumption could be raised of any settlement much less than that of a partition.
16. The result is that, the trial Court simply assumed merely on the basis of the separate living of the co-sharers that there was a family settlement between the parties, without any evidence. On the other hand, the mortgage-deed on record clearly shows that the house was never partitioned nor there was any family settlement to give independent portions to the co-sharers for their independent business and dealing with. Mere separate living did not raise any presumption for family settlement. As earlier pointed out, the mortgaged-deed is admitted on record and para 8 of me mortgage-deed clearly demolishes the theory of any family settlement. As such, it is established on record that the house was never partitioned between the co-sharers. Also there was no family settlement for independent dealing with the portions given to the four brothers for living, and therefore, the suit for partition was maintainable and decree for partition ought to have been passed by the trial Court. The injunction granted by the trial Court is also uncalled for in view of the fact that no injunction could be granted in favour of one of the co-sharers against the other, unless there was a finding that the share of one of the co-sharers was either partitioned or made separate by family arrangement. In this case, there is no proof for either partition or family settlement, and therefore, no injunction could be granted to any of the co-sharers against others.
17. This appeal, is, therefore allowed. The judgment and decree of the trial Court is set aside. The suit of the plaintifff or partition stands decreed. It is directed that the trial Court shall draw up a preliminary decree for partition according to admitted shares, and, shall proceed to prepare a final decree according to law. Costs shall be borne out by the parties themselves throughout.